Same-sex marriage hearing highlights: Same sex couple not imported: CJI

The bench has risen for the day. The hearings will resume on Tuesday, 9th May 2023, reports Live Law

Senior advocate Dwivedi argues that the heterosexuals will not object if Special Marriage Act is struck down. Justice Bhat counters and asks what about people of different faith, Bar and Bench reports. The lawyer responds saying Islam has its own law. The judge says,"We are talking of different religion"

Senior lawyer Rakesh Dwivedi says with reference to the prayer to discard originalism, “We are not advancing some fundamental right here.” He says the question is statutory rights as the special marriage act as it exists, can its intention be discarded

CJI Chandrachud cites an example of a same-sex couple who marry a person from another gender. “Like 2 men in a relationship and one of them marries a woman then there will be no bigamy. This will be applicable to a trans person as well..”, Bar and Bench quoted the CJI. “So if there are two men in a relationship and one of them marries a woman, there will be no offence of bigamy”, the CJI added.

Senior lawyer Rakesh Dwivedi argues that dignity has nothing to do with marriage. "

“My marriage is not registered. So do I not have dignity? I'm not looking for any recognition from any law”, Live Law quoted him as saying.

Chief justice says existence of same couple not imported from somewhere else and it is a part of the society. Advocate Dwivedi responds the same sex couples never demanded marriage. He adds marriage is not about dignity, people who are widows are not without dignity, reports Bar and Bench. 

The CJI responds, “The point is not that single people have no dignity.. the question is about choice”

Chief justice DY Chandrachud asks lawyer Dwivedi how is the dignity of heterosexual marriage at stake. Justice Bhat asks the counsel he is saying using the word spouse diminishing the meaning of husband and wife, Bar and Bench reports. 

“We say I take you as a husband and take you as a wife... how can we say I take you as my spouse”, Dwivedi responds, to which CJI says this is not his strongest case.

Senior advocate Dwivedi argues in court, "Now question is there a fundamental right to marriage.. fundamental right to recognition of marriage and is there a fundamental right to equality in the marriage of heterosexuals.. can this be made permissible by the variety of amendments".

Hearing resume. Senior lawyer Rakesh Dwivedi argues there is an omnibus demand as same sex, intersex and transgenders want an equation with heterosexual marriage, reports Live Law

AG: No vaccum can be attributed to the SMA. Absence of reference to all possible unions of persons as marriage cannot be construed as a legal and a constitutional omission.

CJI DY Chandrachud: So you've dealt with also the argument of inclusion that the fact that the SMA was intended to be a special law in the context of conventional institution of marriage...but same sex couples weren't intended to be a part of this law.

For something as simple as pension, provident fund, gratuity, benefits - that accrues only in a marriage. It doesn't accrue to a caregiver, says Menaka Guruswamy

Attorney General R Venkatramani begins his submissions.

AG: I wish to convey my deep appreciation for petitioners for deep insights I received on a subject like this.

CJI DY Chandrachud: From the drift of the submissions made by SG last time, it appears that the SG also accepts that people do have a right to cohabit and that right is an accepted social reality.

SG Mehta: It is their intimate relationship, the state has no right to regulate or recognise. Why the recognition came? Because the court felt that we will have to regulate- you cannot marry at any age, many times, say bye bye whenever you want, children may be there.

Govt positive about suggestion for exploring administrative steps to address concerns of same-sex couples.

On Monday, Vishwa Hindu Parishad (VHP) held a protest in Tripura's Agartala and said the outfit will organise similar protests nationwide against a plea in the Supreme Court on the issue.

The Centre has agreed to set up a committee to examine the administrative steps it can take to address some of the concerns of same-sex couples. The panel will be headed by cabinet secretary.

The hearing on same-sex marriage has begun in the Supreme Court for the seventh day.