The Supreme Court on Thursday asked the Centre whether certain social welfare benefits could be granted to same-sex couples without legally recognising their marriage, reported Live Law.
A Constitution bench headed by Chief Justice DY Chandrachud said that this will ensure that same-sex couples are not ostracised. The bench also comprises of Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.
“When we say recognition, it may not always be recognition as marriage,” Justice Narasimha said, according to Live Law. “Recognition can mean association which should entitle them to certain benefits.”
The court is hearing a batch of pleas in which the petitioners have challenged the constitutionality of laws that only recognise marriages between a man and a woman. They have argued that these provisions are discriminatory against the LGBTQIA+ community and infringe on their fundamental right to dignity and privacy.
The Centre has opposed the petitions arguing that same-sex marriages are “not comparable with the Indian family unit concept”. The Union government also said that the petitions only represent “urban elitist views for the purpose of social acceptance”.
At one of the previous hearings on April 18, Advocate Menaka Guruswamy, appearing for a petitioner, had told the court that recognition of marriage was not only about dignity but was also “a bouquet of rights” that comes with it. She had argued that same-sex partners are denied joint bank accounts and insurance schemes among other things.
At Thursday’s hearing, Chief Justice DY Chandrachud said that the court was not inclined to go into the matter of marriage but was more concerned about providing legal recognition to the rights of two persons of the same sex to cohabit, reported Bar and Bench.
“Once you say that right to cohabit [is] a fundamental right, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition,” Justice Chandrachud said. “… We are not going into marriage at all.”
The chief justice made the observation after Solicitor General Tushar Mehta, representing the Centre, said that while same-sex persons have the fundamental right to cohabit and choose a partner, it cannot be given a label of marriage.
The court will hear the case next on May 3.
Arguments to support same-sex marriage could be used to defend incestuous relationships, says Solicitor General
At Thursday’s hearing, Solicitor General Tushar Mehta told the Supreme Court that the argument used to support same-sex marriage, such as the right to choose and sexual freedom, could also be used to defend incestuous relationships in future, Live Law reported.
“Suppose a person is attracted to his sister, can they say we are consenting adults and we are entering into activities privately and we claim our right of autonomy, choice?” Mehta asked. “Based on that very argument [right to choose] can someone not challenge this definition [of incestuous relationships]? Why this restriction? Who are you to decide with whom?”
Chief Justice Chandrachud said that Mehta’s concern regarding the right to choice was far fetched.
“Sexual orientation or your autonomy as an individual can never be exercised in all aspects of marriage including the entry into marriage, the prohibited relationships, the grounds on which marriage can be dissolved…” he said, according to Live Law. “These are all subject to regulation by law.”