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

CJI DY Chandrachud: We request you to assist us on this in a non adversarial manner.

Justice Kaul: Let us not transport the Victorian philosophy as our original civilisation philosophy. So you may check up if any thought process has been worked out in ministries in last 5 years.

Justice Kaul: With the decriminalisation which took place, obviously this was indirectly recognition that such a status can prevail. Once such status can prevail, logically different social ministries would have gone into a study how to tackle these other problems arising of this

CJI DY Chandrachud: In that sense we're not going to marriage at all. The reason why we're trying to push you to this is because we take your point that court's remit is not to legislate. But short of that, our law has gone so far. What does the government want to do to ensure ….that these cohabitation relationships, they must be recognised to ensure security, social welfare. And then these relationships will cease to be ostracized.

CJI DY Chandrachud: The old privy council principle - long cohabitation itself is a presumption of marriage. Why? In our parental times, where were the marriage certificates, registrations.

Justice Narasimha: When we say recognition, it may not always be recognition of marriage.

Justice Bhat: Recognition must be something which gives them benefits.

Justice Bhat: Legislation has gone this far as to recognise live in relationships- right to residence. So there can be situations where a person in live in relationship may get the same house. There is a recognition.

CJI Chandrachud: This case is much more difficult for us. These have linkages everywhere - adoption, maintenance, succession.

Justice Bhat: Domestic Violence Act was also enacted because of some movement. Then came the Transgender Act. So collaboration has been happening.

CJI DY Chandrachud: Despite the government's affidavit, we have a law such as the Transgender Act. Look at the vision of that legislation.

Justice Bhat: We had a vishakha - it was limited to its application to public sectors. Then it got assimilated and it's a wider act now.

Justice Bhat: This means that society by and large was where it stood- it accepted the things as they were. Now we have progressed and decriminalized it so now there is some kind of identity. So how do you handle that?

Justice Bhat: Look at it from another angle. You've shown us the international scene. Unlike in other countries, there has been no prohibition for this marriage. In that sense, except 377, we didn't have any law.

CJI DY Chandrachud: The relationship of the court and the government is not really an adversarial relationship. We're pushing the government on socio economic matters. We may not have a model within us and it may not be appropriate for us to devise that model

CJI DY Chandrachud: It is possibly one of the reasons why our religion survived even foreign invasions- the profound nature of our culture. There are so many issues in which your ministries can on the administrative side find solutions. Maybe we can act as facilitators.

CJI DY Chandrachud: You go to our finest temples and if you look at the architect, you will never say it is lewd. It shows the depth of our culture.

SG Mehta: This orientation has been there since time immemorial. But this movement started in 2002.

CJI DY Chandrachud: It's the other way round. It was the impact of British Victorian morality that we had to foresake much of our cultural ethos.

SC asks Centre to come back on May 3 with its response on the social benefits that same sex couples can be granted even without legal recognition of their marital status

SG Mehta: What I'm submitting is hypothetical- that there are studies which show that a single parent child is better than child who doesn't see mother and father both.

SG Mehta: This is more of a sociological problem- the rearing, development of a child. These are all hypothetical situations.

CJI DY Chandrachud: They're real life situations.

Justice Bhat: They're not hypothetical.

SG Mehta: If one can, why not two? I understand the concern.

Justice Bhat: If there are two, both have to be recognised. It can't be that one relates to one and other relates to other. So both children have to be of both parents.

CJI DY Chandrachud: And you don't have to go as far as marriage in this as well. We don't have to go for an all out approach, atleast at this stage of the development of our social ethos. Should that child not have the benefit of the cohabitation of people whose home he resides?

CJI DY Chandrachud: Second, one of the couples in a same sex relationship can adopt- no bar at all, it is lawful. So in such a situation, a child goes to school, does the government want a situation where the child is treated as a single parent child?

CJI DY Chandrachud: We want some element of a broad sense of coalition. Because we're also conscious about the fact that there is so much that representative democracy should also achieve in our country.

Justice Bhat: So what you're saying in essence is- they have a right to associate themselves. In that sense, association also means exclusion- in that relationship there is no other person.

SG Mehta: If there are other issues or concerns, they can be addressed on the government's side.