Five judges of the Supreme Court will at 10.30 am on Tuesday pronounce its verdict on whether India can allow same-sex marriage, and at the heart of the case is the LGBTQIA+ community’s view that wedlock is the key to social acceptance and respect.
“How do I protect my family otherwise?” senior advocate Menaka Guruswamy and advocate Arundhati Katju, lawyers for petitioners Supriyo @ Supriya Chakraborty and Abhay Dang, asked the court.
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They noted that marriage brings with it a host of rights, privileges and obligations bestowed and protected by the law. Married heterosexual couples can adopt children or have children by surrogacy or ART. They have automatic rights to consortium, inheritance, maintenance and tax benefits. They are beneficiaries under a host of employment statutes. The state’s protection to a spouse continues even after death in the form of pension or compassionate appointments.
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The government has given them battle in court by countering that “living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit”.
The petitioners have urged the Bench headed by Chief Justice of India DY Chandrachud to interpret the Special Marriage Act of 1954 as “gender-neutral” to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation.
They have argued that the 1954 Act, in its present form, violated the fundamental rights to a dignified life and equality to the LGBTQIA+ community, which form 7-8 percent of the population of the country, as “it does not provide for solemnisation of marriage between same sex couples”.
“At the heart of personal liberty lies the freedom to choose who we are, to love whom we will, and to live a life that is true to our conscience,” the petitioners said.
The Centre has responded in court that heterosexual marriage was “foundational to both the existence and continuance of the state”. Marriage, in India, was a sacrament, a holy union and a sanskar”.
Giving socio-legal status to same-sex marriage would irreparably disturb the delicate balance of personal laws and accepted social values. Personal and codified laws of different faiths are based on age-old customs of various religious communities. Only the union of a man and a woman in marriage was capable of legal sanction, and enjoy consequent statutory rights and consequences.
The government attempted to dismiss the petitions as the “urban elitist views” of a few influential people.
It argued that the judicial creation of a “new social institution” like same sex marriage cannot be claimed as a matter of right. It was finally up to the Parliament and not the courts to debate on creating or conferring the sanctity of a “socio-legal institution” to same sex marriages. Eom
