Same-sex marriage SC hearing Day 4 highlights: ‘Not all natal families show love, respect…’ - Petitioners

The Supreme Court of India is hearing a bunch of petitions seeking legal recognition of same-sex marriage. The right to equality is being invoked, to seek legal recognition of same-sex marriage.

Advocate Grover: "Love, respect does not always come from natal families and LGBT+ persons deserve to be loved. Family is also needed outside the need for procreation for one's well being."

Advocate Grover: “A petitoner I am representing lives with a family which does not understand or respect her sexual orientation. She is also suffering from an illness. She needs persons who will take decisions that are in her best interest.”

Advocate Grover defends marriage equality saying that for the people who experience violence from their natal families, marriage would provide the necessary legal shield.

Advocate Vrinda Grover: “There seems to be an assumption that families would necessarily be supported. But the primary source of violence is the natal family in these situations."

Advocate Kirpal cited a study to argue that 1.7% of GDP affected by failing to recognise LGBT+ relations.

Advocate Kirpal pointed out that since marriage is sacrosant in Hindu Law, then by that logic divorce should be disallowed to preserve "this institution of marriage”.

Advocate Kirpal, on recognition of rights, argued that once a right is established, it cannot be negated by legislative drafts. "Effectively saying, you have the right to marry but it is not workable."

Advocate Kirpal: "We are not indulging in interpretive exercise to understand what lawmakers in 1954 thought….We don't have doctrine of original intent in our constitution. We have to ensure it's a living document."

Advocate Kirpal contended in the court on Tuesday that SMA is discriminatory on the basis of sexual orientation. “Normally, an Act like this would be unconstitutional since it would be hit by Article14. But my lords would not do that,” he said.

Senior advocate Guruswamy concluded her arguments. Now, advocate Saurabh Kirpal has commenced his submissions.

The CJI led Bench on SMA interpretation remarked, “…we don't believe Parliament is going to enact anything….there may be unheard voices who may want to preserve their way of life (religious aspect).” The bench is discussing issues with confining the case to only SMA interpretation since other aspects of marriage are governed by the personal laws.

CJI Chandrachud remarked orally in the court that the argument of confining to Special Marriage Act cannot erase the fact that several follow up matters of marriage are governed by personal laws and that they will therefore be involved. “But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law,” he said.

Justice Bhat remarks in court, “….If we read into the SMA, there will have to be changes in other personal laws as well. There is no shying away from this.”

Justice Bhat remarks during the hearing, “How many times are we to play follow up? Where does it stop? Is this our job? Ultimately that's the question we come back to."

The petitioners seeking marriage equality on the fourth day of hearing at the Supreme Court argued that the basic structure also belongs to everyone. “We are also part of its soul. The parliament cannot be the reason to exclude us from this guarantee under the constitution,” advocate Guruswamy told the CJI led bench.

Guruswamy argues that petitioners are merely requesting the court for a workable interpretation of the Special Marriage Act.

CJI DY Chandrachud in response to advocate Guruswamy's arguments, remarked orally that it cannot be disputed that the Parliament has powers to interfere with petitions but the question really is which are the interstices left in which this court can interfere.

Senior advocate Menaka Guruswamy argues on behalf on petitioners that the Indian Parliament is a creature of the constitution and does not enjoy unfettered powers. Her remarks came as the petitioners make a case for seeking marriage equality as under article 32 of the constitution. 

The petitioners resumed arguments on Day 4 after lunch, stating that this is not a matter of the Parliament. "When our rights are being violated, we have the right to come to this court under Article 32.

Senior Advocate Menaka Guruswamy begins arguments for non-heterosexual unions. 

Guruswamy says, “In India the parliamentary system is constrained unlike in England. Constrained by the constitution interpreted by the Judiciary. The second point I'd like to raise is of judicial review which part of the basic structure doctrine.” 

Second session of Day 4 of non-heterosexual unions hearing will be heard after 2 pm.

Kothari provides with a proposed gender neutral reading of the Special Marriage Act.

“The special marriage act, and the manner in which it is construed presently, by focusing only on men and women denies transgender persons the right to marry and have a family solely on basis of their gender identity. That amounts to a 15(1) discrimination on basis of sex.”

Kothari, arguing for her petitioner Dr Akkai Padmashali, said, she was “born male. She faced so much violence at her parental home that she had no other option but to leave her home at 14/15 years of age. She was on the streets, begging. That is what so many Transgender persons have to do. They have no other option.”

“So what does the right to family mean? The right to marry has been upheld in a whole variety of judgements- Shaktivahini etc. The right to marry gives rise to a family which also has to be recognised as a fundamental right.”

Kothari further says, “What does a family do? It goes to the core of our being. Our families give us not only love and care but also psychological and economical support. Can we not have the right to have our families recognised?”

She adds, “Transpersons are already having families - they're in relationships, adopting children but these families are not being recognised.”

Kothari said on Tuesday, as per Bar and Bench, “Right to family is recognised under Article 21 and thus right to marry also has to be granted to same sex couples... special marriage act can be read to mean husband and wife as spouse and man and woman as persons..”