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

Nundy: I am also representing a group which no one else is. Left in Catch 22 situation. Some of us are married OCI persons with families who choose to live here, others with deep roots here.

Nundy: If FMA does not follow SMA being read gender inclusively, such marriages, that take place abroad, will not be recognised here, even though SMA would grant marriage equality. 

Nundy: Should this court only read Special Marriage Act inclusively, an immediately Art 14 anomaly arises. Foreign Marriage Act is pari materia. 

Nundy: Second, heightened protection to be provided for non-binary or transgender person due to the fact that NALSA requires state to provide special protection & affirmative action...historic discrimination.

Nundy: 'Third gender spouse' has been critiqued by the community. I used it because it was used in NALSA judgement. As an alternative, 'non binary spouse' may also be used.

Nundy: 'Third gender spouse', or 'non-binary spouse' may be used.

Bhat J: First you said that you don't want neutral word like 'spouse'.

CJI: Tabulated statement seeks to interpose 'third gender spouse' in relevant provisions.

Nundy: There are some trans marriages which are allowed to subsist. But others are not recognised because of a lack of certificate or the timing.

Bhat J: Distinction....One is marriage between man & woman at the time of marriage.

Nundy: Law recognises under S.2(k) the range of gender identity. There is also a broad non-discrimination provision...This is not happenstance. Because of NALSA judgement.

Bhat J: Also encapsulated u/A.15. 

Bhat J: If your arguments are built around the forms, you will have to go forward.

Nundy: Elite...

CJI DYChandrachud: Elite argument can be set aside. Matter of prejudice. Does not determine how we rule on a constitutional issue.

Kaul J: Are you saying that because such marriages subsist, that it itself amounts to permission for such marriage subsequently.

Nundy: Point is, state already recognises some trans marriages...these marriages are pre-existing.