How far can courts go when Parliament empowered to legislate on marriage, SC to same-sex marriage petitioners

New Delhi: The Supreme Court on Tuesday queried the petitioners’ counsel, seeking legal sanction for same-sex marriages, how far can the court go to allow recognition of same-sex marriages as only Parliament is empowered to legislate on the subject of marriage, divorce, inheritance etc and legalising these marriages without touching personal laws would not be an easy task.

A five-judge bench, headed by Chief Justice of India D.Y. Chandrachud and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, said the Parliament has legislative powers over the canvas which is covered by these petitions and the entry 5 of the Concurrent List, which specially covers marriage and divorce, but the question is, which are the interstices left in which this court can interfere.

The bench said even in the context of privacy in Puttaswamy or in the Vishaka case, the framework set out by the court has to be fleshed out by the legislature.

The Chief Justice told senior advocate Menaka Guruswamy, representing some petitioners: “These rights courts have contemplated…. have to be fleshed out by the legislature. There are cases of course, Vishaka is a classical example, where the court has laid down a framework and then the legislature stepped in and created a law, especially on safety of women at workplace.”

“But the test is really this, how far can the court go, because all your submissions have some bearing on how we understand the impact of our decision, as you wanted to begin context of Special Marriage Act (SMA) on issues which will relate to personal laws because no doubt about the fact that adoption, succession… these are all matters which are governed by the personal law today, you also have Hindu Adoptions and Maintenance Act.”

Guruswamy contended that the government cannot say that this is a matter to be left to the Parliament and when fundamental rights of a community are violated, they have the right to approach the constitutional court under Article 32 of the Constitution.

The bench queried: “When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?”

As counsel argued that petitioners do not seek any special treatment but a mere workable interpretation of the Special Marriage Act to recognise their relationships, the bench observed that the Special Marriage Act and personal laws are interconnected and “any changes in the SMA will have some impact on personal laws as well”.

“Provident fund, pension… it actually does not stop there at all, the most important social security provided to spouses between each other, apart from spousal comfort… your entitlement on the death of the spouse. If we declare using the SMA, that you know, substitute the word spouse for husband and wife and substitute person for man and woman.

“Simple act of reading up and reading down a statute, but can we stop at that today… what happens when two Hindu women have married or there are two Hindu men who have married and one of them dies… the Hindu Succession Act (says), when Hindu male dies intestate, the property will devolve in following manner. There is a clear distinction between what a woman will get and a man will get. When a woman dies intestate there is a different line of succession…”

The bench said if it is read into the SMA, there will have to be changes in other personal laws as well and there is no shying away from it, and also pointed out that SMA was carved out an exception, by being neutral to religion.

“But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law,” it said, adding that there is no denying the link between SMA and personal law.

Counsel said all this would only be consequential and it would follow.

The Chief Justice told counsel that “so long as you are dealing with broader issues like dignity, the right to family life, people are trying to benefit from the institution of marriage and not trying to denigrate it, this is an easier terrain for the court to cross.

“Difficulty is, once you cross the terrain there is no stopping then…”

Justice Bhat observed that if court were to adopt the course counsel is asking for, but the provision makes a distinction between personal laws and person laws, spouse which is not recognised in personal law but “who is treated as spouse according to our interpretation will actually lose out in event of unnatural death, when neither of the spouses have made any testamentary request”. He said the surviving spouse is left with nothing, perhaps even the children, “because succession will apply in case of four or five communities”.

The Chief Justice said “all these statutes confer social welfare benefits on certain categories of persons, upon the wife of the deceased employee, husband of a deceased woman employee… like maternity benefits, provident funds, income tax, so these statutes…. they define who will get the benefit”.

“By accepting your submissions, we are going to say that for purposes of these statutes these benefits should devolve on spouses of same sex couples, which necessarily means we are excluding a category of beneficiaries who the statute otherwise contemplates.”

The bench further added, “essentially, what we are doing in this process by conferring benefits on a category of persons the court is necessarily giving a value judgment of who will be excluded from receiving that benefit by interposing somebody who will get benefit under that statute”.

It queried if the petitioners represented the interests of the entire community as there may be some persons who may want to preserve their present way of life. Counsel submitted that those who wish to participate in this new definition of relationship can participate and those who don’t want to, need not.

Senior advocate Saurabh Kirpal, representing some petitioners and assisted by a team of advocates from Karanjawala & Co, submitted that in the past, marriage was considered sacrosanct and indissoluble, however, the provision of divorce was incorporated and is allowed, adding that the counter wrongly suggested that same sex marriage will dilute the institution of marriage.

He said in fact by allowing same sex marriage, the institution of marriage will expand and be strengthened and by not allowing same sex marriage has the effect of promoting lavender marriages which cause misery all around.

The hearing in the matter will continue on Wednesday.