Marriage Equality Petitions | Indian Culture Extraordinarily Inclusive, British Victorian Morality Code Was Imposed On Us: CJI DY Chandrachud

While hearing the marriage equality petitions on Thursday, CJI DY Chandrachud orally remarked that Indian culture was "extraordinarily inclusive" and it was due to the impact of the British Victorian morality that Indians had to foresake their cultural ethos and become exclusionary of queer individuals. A constitution bench comprising the Chief Justice as well as Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, was hearing a batch of pleas seeking legal recognition of queer marriages in India when Solicitor General Tushar Mehta argued that the queer movement started around 2002 in India.

CJI Chandrachud disagreed with the Solicitor's submission and stated that queer representation was a part of the Indian culture which was "extraordinarily inclusive" and it was the Britishers which imposed Victorian morality on a different culture and criminalised homosexuality in India. He said–

"You go to our finest temples and if you look at the architect, you will never say it is lewd. It shows the depth of our culture. What happened really was from 1857 and thereafter we got the Indian Penal Code. We imposed it as it were a code of British Victorian morality on a completely different culture. Our culture was extraordinarily inclusive, very broad. It is possibly one of the reasons why our religion survived even foreign invasions- the profound nature of our culture."

SG Mehta continued his arguments and stated that the State should be very slow in recognising any personal relationship because that was the arena of socio-personal relationships. He said–

"It can recognise only when legitimate state interest recognises that regulation is necessary. So marriage also in heterosexual couples ideally shouldn't have been regulated. But society felt that you can't permit people to marry at any age, many times etc."

He also argued that there is no data yet available on the nature of children raised by queer couples.

"This (queer rights) movement started 20-30 years ago. We don't have any data. The first or second generation is here. So what is the effect on children, very few may have adopted - there is no reliable data."

Other submissions discussed in the court today can be found here and here. 

The primary arguments raised by SG Mehta today were that–

1. Incorporating queer marriages in the framework of the Special Marriage Act will involve substantial rewriting of the legislation and thus must be left to the parliament.

2. The act of revamping the Special Marriage Act may also involve the court ignoring some provisions which have been introduced as a matter of public policy, such as additional grounds for women in divorce cases. 

3. Various segments of the Special Marriage Act are interlinked with personal laws and specifically contain references to personal laws. Thus, the recognition of queer marriages in India would involve reinterpretation of personal laws by courts.

SG Mehta also provided with various statutes and provisions of law which if reinterpreted as gender neutral laws, would create complications. He said–

"Illustrative list is 150 sections of various other statutes. Therefore my lords may not give meaning which creates complications rather than solving the problem. Maybe if the Parliament considers appropriate, the parliament may in its wisdom provide for a comprehensive legislation."

In this context, he provided examples of the Dowry Prohibition Act, 1961, the Protection of Women from Domestic Violence Act, 2005, the Indian Penal Code, Indian Succession Act, 1925 etc. He said–

"Succession Act provides for widow, widower, husband, wife, father, mother etc. Let's say marriage is permitted. They adopt and then someone dies. Father and mother is LGBTQ couple - who will be treated as father and who will be mother? This is a dilemma and cannot be foreseen by your lordships. There is different eligibility to adopt a child. If it's a man, he cannot adopt a girl child less than 21 years of difference. If it is a female, she cannot adopt male that way. So it cannot be gender neutral...Kindly for an illustration now see the Indian Penal Code. "Man" and "Woman" are defined under Section 10. The word 'man' denotes all the male human beings & 'woman' denotes all female human beings. Section 304B IPC for dowry death also has "husband" and "wife"."

Also Read - Can Same-Sex Couples Be Granted Certain Rights Without Legal Recognition As Marriage? Supreme Court Asks Centre

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022