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

While hearing the marriage equality pleas on Thursday, the Supreme Court orally asked the Union Government if it was willing to grant social welfare benefits to same-sex couples, without conferring such relationships legal recognition.

The Constitution bench comprising the CJI DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha pointed out that law granted certain rights to heterosexual couples living together for long time, though not formally married. The bench queried if similar benefits could be extended to same-sex couples as well. The bench observed that such measures will ensure that same-sex couples are not "ostracised". 

"When we say recognition, it may not always be recognition as marriage. Recognition can mean association which should entitle them to certain benefits", Justice Narasimha observed during the hearing.

"Recognition must be something which gives them benefits", Justice Bhat stated.

Referring to the old Privy Council principle that long cohabitation will raise presumption of marriage, CJI Chandrachud told Solicitor General of India Tushar Mehta :

"In that sense, we're not going to marriage right now at all. The reason why we're trying to push you to this is, because we take your point that court's remit is not to legislate. But short of that, our law has gone so far. What does the government want to do to ensure that these cohabitatory relationships.. they must be recognised to ensure security, social welfare. And by doing that, we can ensure in future that these relationships will cease to be ostracised in society".

The bench asked the Centre if there can be some measures giving financial security to same-sex couples by allowing them to have a joint-bank account or to name their partner as nominee in insurance policy. 

As the SG responded that these are all human concerns that the government also shares, the CJI asked the Government to make a statement and indicate what steps it is willing to take. "We request you to assist us on this in a non adversarial manner", CJI told the SG.

Justice Kaul pointed out that after the decriminalization of homosexuality in 2018, many persons would have "come out of closet" and continuing in relationships. So in that context, have the Ministries of the Government given any thought about the problems such couples may encounter in daily life, the judge asked.

"Live in relationship was also in that category. Some obligations follow. Similarly, problems are bound to arise here in different aspects. For example,bank accounts, adoption and so many other things. This is an aspect where I thought government may have thought about it," Justice Kaul said.

The SG then assured the Court,

"I make it clear that i will assist the court qua, so far as possible and legally permissible, removal of the barriers without any legal or statutory recognition. Whatever administratively can be done can be seen. My stand on this will not be adversarial."

"You may not want to confer them any status, but you need to bring down the barriers", Justice Bhat observed. 

The bench will hear the matter next on May 3.

Today is 6th day of the hearing. Follow live updates here.