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

SG Tushar Mehta says, “If the custody goes to a mother.. then it has to be seen who is the mother.. the mother will be who we understand and the legislature has understood the same.”

SG Tushar Mehta further talks about adoption, he says, “There is different eligibility to adopt a child. If it's a man, he cannot adopt a girl child less than 21 years of difference. If it is a female, she cannot adopt male that way. So it cannot be gender neutral.”

SG Tushar Mehta raised concerns about who will be the father or mother of adopted children in non-heterosexual unions.

He said, “For domicile, it cannot be decided who will be the woman. For passports etc this issue will arise. Succession act provides for widow, widower, husband, wife, father,mother etc.”

He added, “Let's say marriage is permitted. They adopt and then someone dies. Father and mother is LGBTQ couple - who will be treated as father and who will be mother? This is a dilemma and cannot be foreseen by your lordships.”

SG Tushar Mehta argues, “Now come to the domicile issue.. there is wife's domicile during her marriage.. and it has to be decided who is the wife. Succession act provides father, mother, brother, widow, widower... if in this relation one partner dies then who is left behind... widow or a widower?”

SG Mehta says, "If your lordships were to read "person" in place of husband or wife, one person will have right to claim maintenance from another. Meaning, in case of heterosexual marriages - husband can claim from wife."

CJI says, “Therefore, looking at the conspectus of these provisions perhaps we can conceptualize your arguments by saying - reinterpreting provisions of SMA will have three major problems…”

He adds, "1. It will involve substantial re writing of legislation

2. it would amount to interference in matters of public policy

3. it would also interfere in the realm of personal law and court cannot avoid the interplay between SMA and personal law"

SG Tushar Mehta, presenting arguments for Centre in Supreme Court on non-heterosexual unions said, “The other side said that let both have both grounds for divorce. Like 1A applies only to a wife so who will be a wife in a man-man marriage etc - they said both would have both the grounds.”

“Then there is a problem. The problem is- can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted?” Mehta questioned. 

“The fact remains that non-registration of marriage does not render the marriage void.. only when you try for visas etc,” CJI Chandrachud said in Supreme Court.

"There is one more thing- 19 provides for severance only in respect of your family status. 19 still holds intact the applicability of all other aspects of personal laws," CJI says. 

SG Mehta responds, “Yes, I'm obliged. Therefore, it may not be a choice to not touch other personal laws. It is interwoven.”

SG Tushar Mehta says, “Say i marry a Muslim.. only for the sake of example.. section 19 will apply..that is why I say that personal law is interwoven even with special marriage act.. it may not be to say that personal law will not apply.”

Mehta adds, “Please see Section 21 where succession act is made applicable across religion but not other personal laws of Muslims, parsis etc.”

“In the case of a heterosexual couple, the fact that one of the spouses cannot procreate doesn't render that an invalid marriage. Suppose the girl has had a hysterectomy when she was a child - she can still have a marriage,” CJI says. 

“Not only will your lordships need to rewrite the act, your lordships will have to recast statutory forms also,” says Mehta on procreation act. 

Looking at provisions of solemnisation of marriage Mehta highlights provisions concerning persons unfit of mind and "procreation".

He says, “Procreation necessarily means union between man and woman.”

CJI responds, “That may or may not be. Emphasis in that provision is not so much on procreation as it is on mental illness.”

SG Tushar Mehta says, “See the definition of full blood and half blood...we can never reconcile this provision - it says that one man has given birth to a child with a biological woman. Marriage between lesbians- that can't be read because it wouldn't be full blood. This full blood will have inevitable impact of succession.”

CJI sayd, “Then you see Section 3g of Hindu Marriage Act.”

Mehta responds, “Take it from me, Hindu Marriage Act will apply.”

SG Tushar Mehta says, “But I'm attracted to my sister. We are consenting adults entering into activities within privacy. And we claim our right of autonomy, right of choice...based on that, can someone not challenge that why this restriction?”

CJI responds, “That is far fetched.”

SG Tushar Mehta says, “The state can regulate relationships if the state feels that it is in legitimate interest to do so. Therefore, marriage was not a regulated relationship. But state in its legislative policy wisdom decided that we will regulate and we can regulate only when we recognise.”

CJI said, “The state can regulate relationships. A parent may say that they can control their child but state can say you have to send them to school.”

Justice Ravindra Bhat said, “If you are building up and saying there is state interest in this relationship... then that is different.. so there is no field completely autonomous in that sense.. there are certain state interests which are legitimate..”

SG further responds, “State has no business to regulate social personal relationships...but state can regulate certain relationships if it was in legitimate state interest..”

SG Tushar Mehta says, “Please visualise a situation 5 years down the line.. i am attracted to someone in the prohibited relationship... incest is not uncommon across the world and it is prohibited.. someone is attracted to the sister.. and claim autonomy and is doing something in private domain... now cannot this be challenged saying how can this be prohibited..”

CJI Chandrachud says, “But this is far fetched.. sexual orientation and autonomy cannot be exercised in all aspects of marriage... it cannot be argued that sexual orientation is so strong that incest be allowed..”

Speaking about the petitioners, CJI said, “They are saying sexual orientation is given to me.. it is not a matter of choice but an innate characteristic.”

“The petitioners want to re-write, re-structure and re-engineer the special marriage act to suit their requirements. Would an enactment be read in such a way that it applies in one way to heterosexuals and in another way to same sex.. this exercise may not be an interpretative exercise,” SG Tushar Mehta

The five-judge bench in the apex court said they will not touch religious or adoption issues. The CJI added, “Challenge to notice provisions in SMA can be assigned to a two judge bench if its a standalone prayer”.

The CJI furthere told Solicitor General Tushar Mehta that he can argue on personal issues.

Chief Justic of India DY Chandrachud said, “Let there not be repetition so that there is no mental fatigue dealing with repetitive arguments. No one else need to argue that it is a legislative exercise. Mr Mehta and Sr Adv Rakesh Dwivedi can guide others as to how arguments are not repeated.”

Hearing begins in the non-heterosexual unions case. After today, the Supreme Court will resume the hearing in the case on May 3. 

The Supreme Court on Wednesday heard Day 5 of arguments over multiple petitions demanding marriage equality - the right of non-heterosexual couples to be wed and given the same rights as heterosexual unions. So far, the court head from the petitioners, who argued in favour of marriage equality citing various issues - from the importance of family to the right to equality.

Wednesday afternoon the court began hearing the views of the government - which last week sought to dismiss the petitioners' demands as an 'urban, elitist' concept. Read here the top ten things said in court on Day 5.

The Supreme Court's five-judge bench headed by Chief Justice DY Chandrachud on Wednesday continued hearing a batch of petitions seeking legal recognition of same-sex marriages in India.

The petitions before the apex court include those seeking recognition of same-sex marriage under various Acts, like the Special Marriage Act, Foreign Marriage Act and the Hindu Marriage Act.

The arguments from both sides put forth their views. The same-sex couples and LGBTQIA+ activists hope for a judgement in their favour as they strongly argue that marriage is a union of two people - not just a male and a female, while the government strongly opposes this view and affirms that a marriage can take place only between a man and a woman.

"Same-sex marriages are not comparable with the Indian family unit concept of a husband, a wife and children," the government argued in the court. Read Here.

The Supreme Court will be hearing Centre's arguments on the non-heterosexual unions on Thursday. 

Petitioners' arguments were wrapped up on Wednesday and Solicitor General Tushar Mehta appeared for the Centre. 

Mehta urged the court to leave the matter to Parliament. He said, “Wherever legislature has stepped in, they have correspondingly amended other statutes. But, note that none of the various statutes that would be affected have been challenged here. So court cannot do what Parliament can.”