Admitting that it was difficult to recognize same-sex marriage rights without venturing into the realm of personal laws providing for a range of other rights such as inheritance, maintenance, adoption, succession etc., a bench of Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha said, “We are not going into the issue of marriage at all right now. That is not the objective. The reason for putting pressure on the government is that we should be clear about it, because we accept your (Centre’s) point that if the courts go into the legislative field, we will make laws, which is not our right. It is for the Parliament and the State Legislatures.
“Less than that (marriage rights)… what can the government do for couples living together for a long time?” he said. They need some recognition to create conditions for their social security and welfare. And by doing this we also ensure that these relationships are not outcasts in the future.”
04:28
Same-Sex Marriage Case: After 5 Years, One Can Challenge Provisions Prohibiting Incest, SG Tushar Mehta Argues In Supreme Court
The court asked Solicitor General Tushar Mehta to speak to the government and reply on the issues on Wednesday, the next date of hearing.
Same-sex couples need to be assimilated, not ostracized: CJI
The bench said that with decriminalization section 377 In the IPC, the existence of same-sex relationships was recognised. Mehta replied, “The decriminalization of homosexuality has not been interpreted by the government as giving any legal Recognition or status of relationships among members of the LGBTQIA+ community. Those relationships can continue. There is no bar in law.”
Justice Kaul said that if such relationships were valid in law, many of the problems faced by them – such as opening a joint bank account, right to gratuity and pension of the deceased partner – needed to be addressed by the government.
02:10
Marriage equality hearing: ‘Leave it to Parliament,’ state tells Supreme Court
“I will assist the court, to the extent possible and legally permissible, in removing the problems or obstacles without giving any legal or statutory recognition to such relationships,” the SG said. Justice Bhat said, “You may not want to confer a certain recognition or status. But at the same time, those barriers need to be brought down.”
Mehta replied, “I assure the court that my stand on this issue will not be adversarial. I will speak to the government on what can be done to improve the humanitarian issues faced by same-sex couples.
Earlier, Mehta again cautioned the Supreme Court against falling into the trap of personal laws coupled with the SM Act. In response, indicating that the bench was moving away from going full throttle in examining the rights of marriage for same-sex couples, the CJI said, “We understand our limitations (read SM Act). Or on reading). There’s no question about it.
“But there are many issues which can be resolved at the administrative level… We cannot have a model,” he said. It may not be appropriate for us to build that model. But we can tell the government how far the law has gone. Within the ambit of what is recognized by our law, can’t we ensure that the government takes care of the day-to-day problems of same-sex couples?
Emphasizing that same-sex couples need to be “assimilated into society and not ostracised”, the CJI said, “Even today, an LGBTQIA+ couple can get married in a civil ceremony in India, Can invite friends to celebrate and organize reception.So, we need to give some recognition to them.