Same-Sex Marriage- Supreme Court Constitution Bench Hearing -DAY-5

CJI DYChandrachud: Will continue tomorrow.

SG Tushar Mehta to continue submissions tomorrow, Sr Adv Kapil Sibal & Attorney-General also to address the constitution bench. "Two sessions, maybe 1-2 hrs extra," says SG.

Bench rises.

"Legislators were aware of homosexuality, but they consciously avoided, even as a ground for divorce under Special Marriage Act," SG Tushar Mehta contends that SMA was specifically intended to recognise only heterosexual unions.

SG Tushar Mehta: So homosexuality was not something unknown to the members when Special Marriage Act was being debated. Despite this, they made a conscious decision to use 'man' & 'woman' instead of 'parties'.

SG Tushar Mehta talks about how certain members had argued for 'feminine vice of lesbianism' to be included & 'sodomy' be replaced by 'homosexuality' as ground for divorce under SMA, in the interest of the 'solidarity' of marriage.

SG Tushar Mehta: Your Lordship is right, till '56, it was neither permissive nor prohibitive. Maybe uncodified Shastric law would apply...May have its repercussions.

Bhat J: At the time, were there ANY laws ANYWHERE in the world allowing same-sex marriage?

SG Tushar Mehta: Not to our knowledge...but no prohibition.

Bhat J: In England, there was prohibition till '73.

SG Tushar Mehta: There was a member during the debate who asked 'homosexuality' to be introduced as a ground for debate, after 'sodomy'.

"A man must marry only a woman, not a man," Mehta quotes from the debates on SMA.

SG Tushar Mehta (continues reading out debates on SMA in Parliament): Brahmo Samaj of course was one of the main contributing factors, but not the sole one.

SG Tushar Mehta: People not agreeing to conditions were free to marry under religious law...That is personal uncodified law...does not prohibit LGBTQIA+ marriages, except...

(Discusses with junior) Yes, HMA prohibits...

SG Tushar Mehta: Parliament was aware of lesbian and gay people. Select committee in fact used the word parties instead of 'man' & 'woman'. After heated debate, amendment was brought to introduce different ages for men & women.