Centre Says Same Sex-Marriage Will Play Havoc With Personal Laws But We Are Also Part Of Society, Our Parents Long To See Us Married: Adv Arundhati Katju

The Supreme Court today continued hearing the arguments for petitioners seeking legal recognition for queer marriages in India. Advocate Arundhati Katju, while addressing the Constitution bench today, urged the Top Court to issue a positive declaration that marriage solemnised under Special Marriage Act and parties to such marriage will be entitled to all rights & obligations, notwithstanding gender identity & sexual orientation.

"Centre says this would play havoc with personal laws. But we are also part of our community & our society. Our parents also long to see the day we get married. Let us be blessed just as any other couple," she urged.

Today is fifth day of hearing before bench comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha.

Katju was making submissions with respect to consequential benefits and issues that may arise with the legal recognition of queer marriages. She submitted that LGBTQ couples will come to courts with claims, as these issues arise, just as heterosexual couples have, from the time codification of matrimonial laws began. "All aspects that arise before this court, are not clear today, will be settled eventually."

In this vein, she also urged the bench to make a negative declaration binding the state to not deny rights & obligations to married couples whose marriage has been solemnised under SMA, only on ground of sexual orientation or gender identity. " In terms of application of statutory application, Section 21A will apply with same force that it does to heterosexual couple," she urged.

Section 21A SMA states that where the marriage is solemnized under this Act of any person who professes the Hindu, Buddhist, Sikh or Jaina religion with a person who professes the Hindu, Buddhist, Sikh or Jaina religion, section 19 and section 21 shall not apply and so much of section 20 as creates a disability shall also not apply.

The overall effect of this chapter is a Hindu Buddhist Sikh or Jain upon marriage to a person who in light of Section 21 is not a member of that faith, is severed from joint family and removed from operation of Hindu Succession Act, and placed under Indian Succession Act.

"But Section 21A has the effect of saying Sections 19 and 21 won't apply if I marry another Hindu and it does not apply to non-Hindus, i.e. persons of other religion who may marry within their faith. But 19 and 21 apply to both persons," Katju submitted.

Here, Justice Bhat observed,

"There's one caveat. You're right on one person, the second part will have to be seen because you're pre-supposing that there could be other same-sex couples from the same religion...if you have a christian and a Muslim...or whatever, all permutations and combinations are there...to that extent you will have to look into the provisions of Succession Act, and other personal laws..."

Other than partaking in the sociolegal institution of marriage, some LGBTQIA+ couples might long to have children, which is a part of the ‘human experience’, Katju explained. She said,

“Today, not all couples wish to procreate. Neither will all couples who marry have children, nor is it a condition under any law. However, as a couple, having a child is a part of the human experience, and is something one may long for.”

Speaking about the internationally recongised principle of the best interest of the child, she told the bench that LGBTQ couples in the country with children were adversely impacted by the legal non-recognition of their marriage. “What happens is that the law, just as it renders one partner a stranger to the other, it also renders the child a stranger to one of their parents, under the law. But a child cannot be made to suffer because their parents belong to a protected class under the Constitution.”