New Delhi: The Supreme Court on Thursday observed that in heterosexual couples, a child may see domestic violence – a father becoming an alcoholic, thrashing the mother, and asking her for money as it questioned the arguments that two spouses, who belong to a binary gender, are essential for marriage.
Senior advocate K.V. Viswanathan, representing Zainab Patel, submitted before a five-judge bench headed by Chief Justice of India D.Y. Chandrachud that it is incorrect to say that gay, lesbian, and same-sex couples do not provide the children safety, security, and the upbringing they require.
“Long back in our country, the law was all that is required is the welfare of the child… if that is applied then it does not matter whether it is a heterosexual couple and homosexual couple,” he said, also cited findings based on evidence that they are as suited as heterosexual couple to bring up children.
The Chief Justice said: “Mr Viswanathan, what happens when there is a heterosexual couple and child sees domestic violence… will that child grow up in normal atmosphere, of a father becoming an alcoholic and coming back home and thrashing the mother every night and asking for money for alcohol, so much for heterosexual couple, there no absolutes, as I said.”
Making a passing reference to the bench being trolled on social media for various oral observations, the Chief Justice added: “Even at risk of getting trolled. Now this has become the name of the game for judges to confront, answers to what we say in the court are in the trolls, not in the court.”
Viswanathan submitted that the Centre, in its counter-affidavit, has stressed the importance of procreation, and argued that as people in a same sex marriage cannot procreate, they need not be granted the right to marry. In response, he submitted that even many heterosexual females above the age 45 years may not be able to safely become pregnant, but are still allowed to marry, therefore, procreation cannot be a ground to deny the right to marry.
The bench – also comprising Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, and, P.S. Narasimha – orally observed that heterosexual couples now with the spread of education, the pressures of the modern age, increasingly, couples are either childless or single child couples.
The bench further observed: “As per us to redefine the evolving notion of marriage, is existence of two spouses who belong to a binary gender is necessary or the requirement for a relationship of marriage, or the law has now progressed sufficiently to contemplate the existence of binary genders may be not necessary for your definition of marriage.”
Earlier during the day, senior advocate Abhishek Manu Singhvi, representing some of the petitioners seeking legal sanction for same-sex marriage, submitted that personal laws in the country “don’t discriminate” unlike the Special Marriage Act of 1954, while arguing against the mandatory 30-day notice period in it.
He added that the period allows interference from khap panchayats and others opposed to such marriages and that it should not exist for heterosexual couples as well.
The Chief Justice orally observed: “To put it bluntly, is the relationship between a man and a woman so fundamental to our law therefore, the Special Marriage Act… that for us to comprehend that it will also include a relationship between same-sex couples.”
The bench queried Singhvi if his argument is that the institution of marriage in itself is so very important that denying it to same-sex couples, would be contrary to fundamental constitutional values?
It asked that in a heterosexual relationship, there is a rape, then how in a homosexual relationship, will the same principle apply? And, if a marriage is registered, then there will be nuances which will arise, and can we take care of all future eventualities?
Singhvi that there is a flip side, marital rape is not recognized in this country and it is an issue pending, and today, rape is not a recognized crime within marriage, it may be a ground for divorce or cruelty. To this, the bench asked if law which applies on a heterosexual relationship will equally apply on homosexual relationships.
He submitted that their hope is not to be condemned to live in loneliness, excluded from one of civilisations, and they ask for equal dignity in the eyes of the law and the Constitution grants them that right.
Some petitioners have challenged the provisions of the Special Marriage Act, 1954 which require parties intending marriage to give advance notice of 30 days, which will be published in the registrar’s office inviting public objections. Petitioners, seeking recognition for same-sex marriage, challenged these provisions and termed them as violative of fundamental rights to privacy. The petitioners claim that the ‘notice and objections’ regime exposes couples who enter into non-traditional marriages to threats and violence from families and vigilante groups.
The bench will continue to hear the matter next week.
The top court is hearing a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws, as unconstitutional on the ground that they deny same sex couples the right to marry or alternatively to read these provisions broadly so as to include same sex marriage.
