SC says relationship between same-sex couples is emotional, notice inviting objections to Special Marriage Act based on patriarchy

New Delhi [India], April 20 : On the third day of the hearing of various petitions seeking marriage equality, the Supreme Court on Thursday opined that the relationship between same-sex couples is emotional and the notice inviting objections under Special Marriage Act was based on patriarchy.

The Supreme Court also passed certain remarks on being trolled and announced that the matter will be heard from Monday to Friday, like in the Ayodhya case.

A five-judge Constitution Bench headed by Chief Justice of India DY Chandrachud and also comprising justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli and P.S. Narasimha was hearing a batch of petitions pertaining to 'marriage equality rights for LGBTQAI+ community'.

During the hearing, Chief Justice of India DY Chandrachud said, "There are no absolutes as I said, even at the risk of getting trolled."

Earlier, on Tuesday, CJI Chandrachud made the remark that the very notion of a biological man is absolute, which is inherent, and that there is no absolute concept of biological man and woman. The said remark was trolled by various social media handlers.

The CJI on Thursday remarked that "answers to what we say in court is in troll, not in court."

The remarks came when the court was raising the question on the impact of children, who saw domestic violence between heterosexual couples, asking will that child grow up in a normal atmosphere. The court also raised the issue when the father became an alcoholic, coming home and thrashing the mother every night.

Such opinions were put forward when Senior Advocate Ramachandran stressed the right to marriage of same-sex couples saying that studies and evidence show that homosexual couples are as well suited as heterosexual couples to bring up children.

Meanwhile, the court announced that they will hear the matter like the Ayodhya case and take up the matter from Monday to Thursday next week.

Usually, Mondays are miscellaneous days in the top court and the matters listed before the constitution bench are not taken up for hearing.

The court also remarked that in the last 69 years, the law in the country has really evolved and after decriminalizing homosexuality, there are also stable relationships.

CJI DY Chandrachud said, "Relationships are not just physical relations but something more of a stable, emotional relationship".

"We have not just recognised treating relationships between consenting adults of the same gender but we have also recognised that people who are of the same sex would even be in stable relationships," the CJI added.

Another senior lawyer appearing for the petitioners raised questions on the notice inviting objection under the Special Marriage Act and said that couple in the heterosexual world under Special Marriage Act has to announce first to the world that they intend to marry.

Justice Bhat remarked that the notice inviting objection under Special Marriage Act is based on patriarchy. However, the bench remarked that it was created with the objective to protect. But now it is virtually laying them open to invasion by society, the court remarked.

The court was hearing a batch of petitions pertaining to marriage equality rights for the LGBTQAI+ community.

Senior Advocate Abhishek Manu Singhvi submitted that the ultimate guiding star for the present batch of matters is the intention of the statute, which was to provide the institution of marriage to all, irrespective of religious belief and permission. He further submitted that while enacting the statute parliament could not have thought about homosexuals, but society has evolved since.

Singhvi also submitted that the institution of marriage is very important and in order to provide a stable relationship, a same-sex couple should also be granted the same right of marriage. He further mentioned that it is imperative to expand the scope of the framework in order to assimilate this evolution.

He further submitted that the various provisions of the Special Marriage Act can be interpreted in a matter which recognises same-sex couples. Advocate also argued that the 30-day notice and objection regime of the Special Marriage Act is unconstitutional.

Singhvi also submitted to the court that such a regime is only peculiar to Special Marriage Act, 1954 and directly strikes at the right to privacy, autonomy and choice of the couple. He further submitted that this provision rather invites violence and is in contravention of the purpose of the act.

Senior Advocate Ramachandran, appearing on behalf of other petitioners submitted that the issue at hand is not limited to the concerns of the urban elite as alleged.

Senior Advocate Ramachandran argued that Marriage is not just a gateway to socio-economic privileges but also sometimes societal protection from own's own parental families.

He also submitted that couples such as the petitioners he represented did not have enlightened parents and thus they have had to move to the Delhi High Court for protection orders. In light of this, Ramachandran submitted that the notice and objection scheme contemplated under the Special Marriage Act needs to be done away with. He also prayed that a protocol be put in place on the lines of the one set out in the judgment of Shakti Vahini granting protection from the Khaap Panchayat.

Senior Advocate KV Vishwanathan, appearing for one of the petitioners, while making submissions, argued that, in case the Special Marriage Act is to be interpreted, the default age be kept at 18 yrs for the third gender, keeping in view the Indian Majority Act. He suggested adding husband, wife or spouse in Special Marriage Act.

The hearing in the matter will continue on April 24.

Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage. One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice.

According to the earlier petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that "the exercise of which ought to be insulated from the disdain of legislative and popular majorities."

The petitioners, further, asserted it is their fundamental right to marry each other and prayed for appropriate directions from this court allowing and enabling them to do so.

One of the petitions was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala and others.