Same-Sex Marriage: When considering applications for same-sex marriage recognition on Thursday, the Supreme Court Constitution bench questioned whether the law had “progressed” to allow for such unions. and said that perhaps the groundwork had been done to recognize a more “stable emotional relationship” like same-sex marriage if Section 377 had been decriminalized.
Chief Justice D Y Chandrachud’s initial query
Heading the bench, Chief Justice D Y Chandrachud posed the initial query: ‘…Is the presence of two spouses who identify as members of a binary gender necessary for the requirement of marriage or has our law now advanced sufficiently to consider that the existence of binary genders, perhaps, is not necessary for your definition of marriage.’ As Senior Advocate A M Singhvi debated how to interpret the Special Marriage Act (SMA), 1954, to extend rights under it to same-sex couples as well, the Chief Justice of India made his observations.
Stable partnerships can exist alongside one-off relationships-CJI
‘Your main premise (is) that when the legislation was passed in 1954, the purpose of the legislation was to provide a form of matrimony for people who really aren’t relying on their personal law of marriage,’ the CJI stated. ‘Our legal system has significantly changed to take into account the fact that stable partnerships can exist alongside one-off relationships, thanks to the decriminalization of homosexuality. Therefore, by decriminalizing homosexuality, we have implicitly acknowledged that people of the same sex will be in stable relationships in addition to acknowledging transient interactions between consenting adults of the same gender,’ CJI added. According to CJI ‘If the goal of the law from 1954 was to include people who would be subject to a married connection separate from their personal law, then, in your opinion, the law can be liberally interpreted to include more solid partnerships between people of the same sex as well.’
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Singhvi cited a decision that stated that the law doesn’t apply in a vacuum
The court further questioned why, given that it never applied the original reading of the Constitution, it should be bound by the original interpretation of a statute like the SMA. “…We never saw ourselves as being constrained by an originalist reading of the Constitution. The CJI questioned, “Should we be bound by an originalist interpretation of the statute, which is in that sense subordinate to the Constitution, if we have never been bound by an originalist interpretation of the Constitution?” In response, Singhvi cited a decision that stated that the law doesn’t apply in a vacuum. Laws must also be revised and rewritten as social norms and values evolve. In reality, law is a dynamic tool designed by society to achieve peaceful adjustment and human connections by reducing social tensions and conflict.
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The minimum age for spouses
If same-sex couples were allowed in the SMA, Singhvi responded to the question of what the minimum age for spouses would be with the following response, “(the) simple and correct solution is that whatever the same-sex couple is involved, whether it is two ladies or two men, that age will apply, whether it is 18 or 21.” The petitioners’ senior attorney K V Viswanathan argued that the inability of same-sex couples to have children cannot be a justification for denying them the right to marry. He continued by saying that ‘people who have reached the end of their reproductive lives and women who may be medically unfit to become pregnant are permitted to marry.’
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