Preventing Queer Marriages May Lead To Lavender Marriages, Nothing More Detrimental Than Gay Man Cheating A Lady That Way: Sr. Adv Saurabh Kirpal
Senior Advocate Saurabh Kirpal today argued in the Supreme Court that prevention of queer marriages in India by not granting them legal recognition may lead to lavender marriages between a man and woman— where either or both the spouse are homosexual.Arguing before a Constitution bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and...
Senior Advocate Saurabh Kirpal today argued in the Supreme Court that prevention of queer marriages in India by not granting them legal recognition may lead to lavender marriages between a man and woman— where either or both the spouse are homosexual.
Arguing before a Constitution bench of Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha in favour of the petitions seeking legal recognition of queer marriages in India, Kirpal submitted,
"If non heterosexual are prevented from marrying, what happens? In our society, lavender marriages would occur. Two lives would be ruined. There's nothing more detrimental than a gay man marrying and cheating a lady that way."
He added that often, homosexual persons leave the country in search of legal recognition of their relationships outside, leading to "gay brain drain" in India.
Supreme Court was today informed that 12 out of the G20 countries including the EU have permitted same sex marriages. About 34 countries of the world have also done that. However, India is "lagging" behind.
Kirpal pointed the way Special Marriage Act is operated is that any two persons can get married as long as they're heterosexual. "There is clear discrimination on ground of sexual orientation," he argued.
He urged the Supreme Court to read gender-neutral terminology into the Act, so as to permit marriage between non-heterosexual couples. In this regard, he argued that "Doctrine of Reading In" is not some form of finding original intention and giving effect to it.
"We don't have doctrine of original intent in our Constitution. We have to ensure it's a living document. We are not indulging in interpretive exercise to understand what lawmakers in 1954 thought," he submitted.
Kirpal further argued that the LGBTQIA+ community cannot be left at the mercy of the Parliament, which failed them for 75 long years. "Having found a right, you cannot say that legislative drafts do not allow it. Effectively saying, you have the right to marry but it is not workable. The argument is basically that we will leave you to the mercy of the parliament. But the parliament has shown us in the last 75 years that when it comes to the LGBTQIA community, they will not act."
Advocate Vrinda Grover, representing queer activists and couples in relationships involving Trans persons and cis heterosexual persons, emphasized on the concept of "chosen family" in the backdrop of homosexual persons allegedly facing violence in the natal family.
Grover submitted,
"There seems to be an assumption that families would necessarily be supported. But primary source of People who experience violence from their natal families, marriage would provide the necessary legal shield for such persons. A study says that several transgender persons who went home due to covid, were subjected to all kinds of violence from families. That is why this form of chosen family becomes important. In my case, petitioner no.1, is now left with a family who does not understand or respect her sexual orientation. She is also suffering from an illness. She needs persons who will take decisions that are in her best interest. Intimacies are formed which may or may not be conjugal in nature. But these are chosen families. We are canvassing before this court a new imagination of marriage and family which is based on love, care and respect. This may not come from the natal family, which is well established from several studies."
The bench also heard Senior Advocate Geeta Luthra representing a homosexual couple, that has married in the USA. They seek recognition of their marriage in India under the Foreign Marriage Act.
"It is grossly unjust that they're free and equal in other countries but in country of birth of the first petitioner, they're invisible here. Their rights are not recognised here. During COVID, visas were granted to spouses of Indian citizens. But not being recognised, petitioner 2 didn't get a visa. So while they're a married couple in US, they could not come to India during COVID...They cannot be non-married just because they're entering the soils of this country which upholds fundamental rights. It is discrimination on grounds of sex- same way that in many parts of the world women were not given right to vote on basis of their sex. There is no distinction," she argued.
Luthra also cited some foreign court judgments to show court-led recognitions of same sex marriages. "The issue that was raised was should it be by court or Parliament. The constitutional duty of this court is to uphold the Constitution," she said.
She cited Austrian Constitutional Court’s ruling of December 2017 which held that a ban on same-sex marriage was unconstitutional. In this case, the petitioners had opposed law on civil marriage which limited marriage to a union between a woman and a man; homosexual couples were permitted to to register their relationship like a 'registered partnership'. The Austrian Court directed that the Parliament should quickly adopt marriage equality legislation.
"So what was there in that judgement was there was a registered partnership for same sex couples and marriage for heterosexual couples. So they said that this restriction is discriminatory," CJI DY Chandrachud asked.
"The wall separating the two was brought down. Both kinds of couples could go for either kind of relationships," Justice Bhat explained.
Luthra also emphasized on the importance of marital institution in an individual's life. She submitted,
"Marriage is not a static concept. It is an expansive evolutionary inclusive concept. The moment we recognised that those of the LGBT+ community have right, they may be a minority but the majority cannot decide the rights of a minority. Even if it is one person, even if it is one minority, we cannot deny them their rights. These rights include their rights of visas, passports, of right to live in India, rights of inheritance..."
Also happened today: Same Sex Marriage- 'Parliament Has Power To Legislate On Marriage & Divorce, How Far Can Courts Go?': CJI DY Chandrachud Asks Petitioners
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Same Sex Marriage | Will Not Deal With Marriage Equality In Personal Laws Now: Supreme Court