Same-sex marriage hearing Updates: 'Cisgender not transgender', SG corrected

Justice Bhat: You may or may not call it marriage but some label is necessary.

SG Mehta: Maybe... it's loud thinking but in principle, at the outset, as an officer of the court- except any legal recognition of this form of cohabitation, either as a marriage or as other thing...

CJI DY Chandrachud: From that point of view, we would be more than willing to have the government make a statement before us. You have ministries dedicated for this purpose- social justice and empowerment, ministry for women and child development.

CJI DY Chandrachud: Can these couples not have a joint bank account? Nomination in insurance?

SG Mehta: These are all human concerns which I also share and the government also shares. We must find a solution to this.

Justice Bhat: If recognition is framed in such a manner that it is acting as an active barrier for this kind of relationship, what is the remedy?

Justice Bhat: So there is an element- whether you call it duty or not. As a welfare state, as a democratic state, there are aspirations of recognitions.

Justice Bhat: There was no Hindu code and yet the incidents of marriage and effects of marriage were given across provisions. Suppose you're working and you have hard earned money of gratuity and there is no provision to enable the heirs to get it. 

CJI DY Chandrachud: But let's go step by step. Once you recognise that there is a right to cohabit, then it is the obligation of the state that all social impact of cohabitation has legal recognition.

Justice Kohli: What you're saying is that there could be a right to cohabit and give it a name of relationship which is sanctified but that will have no obligations on state to recognise it statutorily.

CJI DY Chandrachud: There's no bar in our law to having any form of ceremony. The question is about legal recognition.

SG Mehta: Yes. In Gujarat, one lady married herself recently.

Justice Bhat: Profound

SG: Spritually very profound but i don't know...

CJI DY Chandrachud: In other words, suppose a same sex couple says that we're inviting a group of 25 friends and we will have a marriage ceremony. In law, there is no prohibition. You also agreed to that. Somebody may have reception, ceremony

CJI DY Chandrachud: Can we tighten up your submission by saying that when you say that there is no fundamental right to seek recognition of that relationship as marriage or in any other name- can we recast it as legal recognition?

SG: Yes, legal recognition.

SG Mehta: Right to love or cohabit or choose a partner is there but there is no fundamental right to seek recognition of that relationship as marriage.

Sr Adv Anand Grover: Right to privacy is affected. They are constitutional issues. It is eminent that this bench decides...19(1)(a) and 21 we're raising.

Sr Adv Anand Grover: It's a constitutional issue because runaway couples both heterosexual and homosexual..

CJI DY Chandrachud: It's an important social issue, not necessarily a constitutional issue for a constitution bench.

CJI DY Chandrachud: That issue is not sui generis to same sex couples. According to you, the right to marry even for a heterosexual couple is elusory when they have to give notice. That is not connected with the issue whether same sex couples have a right to marry.

CJI DY Chandrachud: It's not a five judge issue. It's a simple issue.

Ramachandran: As far as our petitions are concerned, the right to marry, we contend, would be elusory unless the notice provisions go.

Counsel: Your lordships indicated in the morning that you may de-tag some matters.

CJI DY Chandrachud: Just that matter about notice provision. That is capable of being handled by any other bench. Issue applies equally to heterosexual & same sex couples.

Supreme Court resumes hearing.

Supreme Court will resume the hearing post-lunch at 2 pm.

SG Tushar Mehta says, "Discussion of the boundary between legislation and interpretation has tended to focus on two factors. 

First, it will not be 'possible' to construe legislation in a Convention-compliant way if to do so would be inconsistent with some important feature of the legislation. Secondly, the courts even in UK have shown reluctance to place creative reliance on section 3, in cases involving complex questions of social policy which the courts are ill-equipped to decide and which are therefore best left to Parliament."

SG Tushar Mehta says, “Illustrative list is 150 sections of various other statutes. Therefore my lords may not give meaning which creates complications rather than solving the problem.”

“Maybe if the parliament considers appropriate, the parliament may in its wisdom provide for a comprehensive legislature. As I pointed out yesterday, wherever other legislative bodies have done it they have suitably amended other allied laws as well."

SG Tushar Mehta says, “See section 375.. here also a man can only commit rape..”

Justice Bhat responds, “but if gay man rapes another man.. then not 375.. then section 377 comes...”

SG further says, “Yes, section 377 decriminalized only for consenting same sex couples.”

SG Tushar Mehta says, "Kindly for an illustration now see the Indian Penal Code. "Man" and "Woman" are defined under Section 10. The word 'man' denotes all the male human beings & 'woman' denotes all female human beings."

SG Mehta referring to the Domestic Violence Act, says, “Please see Section 2(a) - ‘aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent’.”

SG Tushar Mehta mentions more terms that cannot be gender neutral, he speaks about spinster and bachelor. 

To which Justice Bhat responds, “This language needs to be updated.”

SG Mehtra further says, “This is 1872.”

Justice Kohli responds, “Time to update ourselves.”