The Supreme Court Constitution Bench comprising of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha will continue hearing arguments in a batch of petitions seeking the legalization of same-sex marriage/ marriage equality.

*ASG Aishwarya Bhati starts with her submissions*

11:18 - 11:20 AM

ASG Aishwarya Bhati: There is a basic structure of marriage and that is the union of man and woman. then there is gender fluidity is impermissible where cisgender is core and ignoring the rationale of valid classification leads to inequality... there are areas reserved for women and if these spaces are diluted the cause of women's equality will be compromised.. women welfare rooms, ladies' bar rooms, women's washrooms, and women's inmates.. .. then the welfare of the child is paramount, and cannot be opened for an iota of uncertainty..

11:21 - 11:23 AM

ASG Aishwarya Bhati: The entire architecture of the laws are from the point that the welfare of the child is paramount.

ASG Aishwarya Bhati: Please see the legitimate state interest in the ideal mode of child-rearing. a child can only be naturally born through a heterosexual couple and thus recognition of heterosexual marriage cannot be seen differently from the child's birth and upbringing and the father and mother plays complementary role in bringing up of the child.

11:35 - 11:40 AM

*ASG Aishwarya Bhati reads a paper to point out that conventional beats unconventional everytime*

CJI: But our law permits single parents to adopt.. is it now

ASG Aishwarya Bhati: I am coming to that.. human child rarely is one of the most helpless children in nature and needs all pervasive care,, and thus mothers are protected through legislation..

Justice Bhat: we have moved on.. now there are single fathers are bringing up children.. this is evolving.. what is unchanging is the welfare of the child..

ASG Aishwarya Bhati: Adoption is not an alternative for childbirth..

CJI: There is no compulsion to have biological children and that is why our law envisages that beyond the realm of a couple having a child.. adoption is away.. what if a mother passes away... the father takes on both the duties

11:41 - 11:50 AM

CJI: Is it your case that a right which is available to a single person is taken away when you are in a same-sex relation or marriage.. or two people in a live in relation who are heterosexual..?

ASG Aishwarya Bhati: one of them can adopt... but only couple relation which allows is heterosexual couple

CJI: If a heterosexual couple is in a live-in relation.. one of them can adopt?

ASG Aishwarya Bhati: only a single father or single mother can adopt

CJI: your circular says if you are in a same-sex relationship even as a single parent you cannot adopt

ASG Aishwarya Bhati: let me take you to the Juvenile Justice act..

Justice Kohli: what if later on the couple gets into same-sex relation later...

ASG Aishwarya Bhati: There is disruption and dissolution in adoption also.. heterosexual married couple also have to show 2 years of stable relation for the adoption...

11:51 - 11:58 AM

CJI: If a couple wants to adopt.. our law only recognise the right to adopt only if you are in a heterosexual marriage..what we are asking is nonetheless law recognizes right of single to adopt.. your position is right of single is not affected with the relation the person has whether heterosexual or same-sex so long as you are adopting as a single individual.. so an individual in same-sex relation is not precluded from adoption.. we take it as CARA's statement+

CJI : So a live-in couple cannot adopt as a couple but the existence of a live-in relation does not prohibit of adopting a child as a single individual

ASG Aishwarya Bhati: yes

CJI: That individual right to adopt is not affected by the marital status of the individual.

CJI: Can we summarise that there is no recognition of same-sex marriage..there is no recognition of a same-sex couple to adopt since stability would exist according to you in a heterosexual marriage

ASG Aishwarya Bhati: If spouse is read in special marriage act.. children will suffer the most.. it cannot even be fathomed... but they will suffer.. the entire architecture of this court's judgment and statutes has been from the prism of the child and no on else.

12:05 - 12:15 AM

Justice Bhat: A single man cannot adopt a girl child.. and even an adopted child can conduct a root search upon attaining a majority.. 30,000 parents are registered as prospective adoptive parents in CARA and there are only 1500 children are in the pool for adoption..

CJI: Only 1500 available across India?

ASG Aishwarya Bhati: Not even available.. in the pool.. some time is even taken to see if the child is surrendered is being reconsidered or not

Justice Kohli: How much time is taken for the adoptive parents to get the child

ASG Aishwarya Bhati: Sometimes 3 years

Justice Bhat: A child often leaves a care institution when they turn 18...and not adopted.. what happens to them.. there is a data.. if only 1500 are available.. is it not time care institutions are looked into...

**ASG Aishwarya Bhati concludes her submission**

12:18 - 12:23 AM

**Sr Adv Nadkarni begins her submissions**

Sr Adv Nadkarni: Concept of marriage in Indian society is an institution by itself.. whether in Hindu law it is a sacrament so divine..in Mohammedan law a contract.. recognising same sex marriage is an attack on this institution... please see section 19, 20 of the special marriage act that two Hindus can marry... if two males marry what implication will be there on other laws.

Sr Adv Nadkarni: India has not reached that level that a union of this kind can be allowed.

12:24 - 12:26 AM

**Adv Manisha Lavkumar Shah, appearing for State of Gujarat**

Adv Manisha Lavkumar Shah: Marriage is a public act between two consenting individuals... SMA is part of a wider spectrum...

Adv Manisha Lavkumar Shah: Marriage has very serious consequences. This court is examining the edifice of a social institution and a myriad of marital statutes.. it is an entire regime which is regulated.. all of this is based on heteronormative relation..

12:28 - 12:38 AM

Justice Bhat: What do you mean by sanctification narrative in context of heterosexual marriages.

Adv Manisha Lavkumar Shah: Institution of marriage predated any legislation.. just take prohibited relationship under section 4(D)...

Adv Manisha Lavkumar Shah: Any recognition de hors a regulatory regime will not be proper.. what will happen to prohibited relationships etc then ..petitioners saying parliament will not look into it is not correct.. ordinarily the court will leave it to the parliament..

**Adv Manisha Lavkumar Shah concludes**

**Adv J Sai Deepak starts his submission**

12:40 - 12:45 AM

Adv J Sai Deepak: I kept hearing constitution is a liberal document... is it to say that social conservatism has no place in the constitution... does the society have no role to say and draw a red line that thus far and no further.. i believe that they have a cause but I do not believe they have a case.. when there are issues of legislative competence.. there are powers under article 111 of the constitution.... there are multiple stakeholders..

Adv J Sai Deepak: Even with respect of SMA, society has a right to participate. I have placed reliance of manual of parliamentary procedures...

12:46 - 12:48 AM

Adv J Sai Deepak: Judicial mechanism cannot be a substitute to any of the steps in the parliamentary process. in hindu law the object of dampatiya is procreation... now question what happens to a single homosexual parent: when normative attitudes are sought to be represented.. those who represent the normative attitude cannot be circumvented by resorting to the judicial intervention and leads to judicial paternalism.

**Adv J Sai Deepak reads a judgment**

Justice Bhat: Yes we know these judgments, and we know how to read them, we don't have to be taught.

12:50 - 12:53 AM

Adv J Sai Deepak: The yogyakarta principle leaves it to the countries to decide if they want to recognise such marital unions... if judicial intervention is allowed in this case.. then what happens in the future has to be seen, there are other issues.. having engaged with some transgender activists... the biggest problem is trafficking and prostitution... these are needs which has to be addressed first.

**Court asks for quick submissions**

12:54 - 01:00 PM

Adv MR Shamshad: The Dissolution of Muslim Marriages Act, 1939 refers to the ways of dissolution of marriage.. but as a mode also refers to ways under the Muslim personal law.. if this right of same sex marriage is recognised.. not only it will be recognised in personal laws.. but what about religious institutions manned by such bodies.. what if a same sex couple goes to the haj committee and say that they want to go for hajj together..

Adv MR Shamshad: As far as matrimonial legislations are concerned, even in those legislations, there is scope for customs, practices- which have been practiced for long. Even in a statutory regime, undefined customs and practices have been made part of the statutes.

Adv MR Shamshad: As far as matrimonial legislations are concerned, even in those legislations, there is scope for customs, practices- which have been practiced for long.In S 3 of Muslim Women Protection of Divorce, 1966, there are practices of Muslims which are recognised. 1939 act of dissolution act sets out grounds for divorce but it says that other grounds acknowledged in Muslim personal laws..

Adv MR Shamshad: Even reading of SMA takes us through customs - Sections 19-21 if we read it together, it takes us to Hindu Succession Act and they're uncodified customs.

**Bench rises for lunch break, to assemble at 2:00 PM to continue**

**BJD Rajya Sabha MP Sasmit Patra starts her submissions**

02:13- 02:18 PM

MP Sasmit Patra: I will speak on impact on public policy due to legislative process and I also speak on the parliamentary process. Please see the Jan Vishwas Bill 2022... Without personal laws in ambit this issue of same sex marriage cannot be taken up.

MP Sasmit Patra: 42 laws will be affected, 118 amendments will be needed dealing with 19 laws... Look at the surrogacy bill ..sensitive... Sent to a committee and now sent to parliament. A mediation bill was sent to the committee and 23 meetings have taken place.. this shows capacity and functionality of parliament. Now on the role of polity and voice 1.4 billion people and 745 members of parliament and wouldn't it be befitting for something like this being sent to the parliament. How do we execute this declaration? In Vishakha it became a law, in Shayara Bano there was a law, Navtej right was recognised. Here declaration may be there but public policy precept on ground will be different leading to contempt notices.

**Intervenor seeks to explain how same-sex relation being recognized will lead to bigamy in the country which the Bench let pass**

**Adv Shashank Shekhar Jha submits marriage is a public affair to which bench again says they got it**

**Adv AP Singh submits Homosexuality isn't natural and nor is such a union**

**Bench rejects the application of Adv Anston Thomas seeking CJI's recusal from the case**

**SG Tushar Mehta begins his closing submissions**

02:35- 02:38 PM

SG Tushar Mehta: I object to this submission being made. Any declaration of law would bind every individual in this country who is not even before this court. We knew about the judgment in bakers case where he refused to bake a cake in a same sex marriage case and he was prosecuted.. and then a pastor refused to solemnise it and they had to bring a pastor protection act. Suppose this court brings a declaration and suppose a couple goes to a priest and he refuses to solemnise the marriage as they are same sex, would the priest not be in contempt..

Justice Bhat: What is the form, contour of declaration is important.. we all are thinking grant this and grant that..

SG Tushar Mehta: Legislature has the wherewithal of dealing with the fall out..

SG Tushar Mehta:So any declaration will apply to all and preempt the legislature..

SG Tushar Mehta: Legislature can still do something..

02:40- 02:43 PM

SG Tushar Mehta: We have seven responses from state govenrments.. Rajasthan has taken a position that they have examined it and they oppose it and all rest say that this needs an expansive debate and we wont be able to respond immediately.

SG Tushar Mehta: Your lordships may be aware of that Baker's case where the baker refused to bake a cake for a same sex couple, he was prosecuted. Similar thing happened after the judgement of American court. One pastor refused to perform ceremony of marriage. He was sought to be prosecuted. They had to come out with a law for pastor's Protection.

SG Tushar Mehta: Imagine a situation where your lordships declare the law. Your lordships will not be declaring the contours of regulations. Suppose someone goes to a priest for performing a ritual

SG Tushar Mehta: Priest says that as per my religion only man and woman can perform that ritual and i won't be party to this. Would he not be in contempt of declaration of this court?

Justice Bhat: That is that priest's fundamental right to follow his conscience and faith.

SG Tushar Mehta: Where does his conscience stops and where does that duty begin?

Justice Bhat: That is why the content of declaration is important. You're all presuming that declaration will be in form of a writ- grant this or that. This is what we're accustomed to.

Justice Bhat: What I'm hinting towards is as a constitutional court, we recognise only a state of affairs and draw the limit there.

02:44- 02:46 PM

SG Tushar Mehta: Whenever a declaration is made by legislature, legislature has the power to regulate the fall out. Your lordships would not be able to foresee and thereafter deal with the fall out

SG Tushar Mehta: We've written letters to the state governments. There are 7 responses from Manipur, AP, UP, Maharashtra, Assam, Sikkim, and Rajasthan. Rajasthan takes the position that we've examined this and we oppose to the position of petitioners. Rest say this needs debate.

**SG Tushar Mehta concludes his submission**

**Sr Adv AM Singhvi begins his re-joinder submissions**

**Bench rejects to register his submissions regarding notice etc. of SMA stating that the issue is to be heard separately in other petitions**

02:58- 03:00 PM

Justice Kaul: It is being felt that since it is liked with heterosexual marriage it will be appropriate to hear it with both kinds... bench is saying let it rule that you have a right of marriage first or not.

Singh: My first point is constitution compliant reading of the SMA is within the bounds of legitimate statutory interpretation.. the relief i seek is workable and it does not require to create any new social institutions... nor to have a new definition of marriage.. nor entering into any thicket of personal laws..we are seeking marriage equality.

03:10- 03:15 PM

Sr Adv Singhvi: Was the Navtej Johar judgment not a value judgment?

CJI: No it was not.

Justice Bhat: You are not taking it heads on.. you have to say that classification is not correct.. but you are not going that far because you have no locus... otherwise say strike down.. just artful argument..

Sr Adv Singhvi: No locus is not correct.

03:16- 03:18 PM

Justice Bhat: Say that the classification is illegal.

Sr Adv Singhvi: Yes, I am saying that.

Justice Bhat: So heterosexual classification is illegal?

Sr Adv Singhvi: It can become legal when you read spouse person in SMA

Justice Kohli: But there was never any challenge to the classification..

CJI: What you would then seek is expansion of the very class of marriage to incorporate the same sex union.. so in a way to read down the SMA.. we would say that any notion of marriage between heterosexual union is unconstitutional// can we go so far to say this? you will also not take it that far..

03:28- 03:29 PM

Sr Adv Singhvi: Today the number of queer people have gone up.. so when there is a secular agnostic platform for heterosexuals why not for them...

**Bench gives 12:00- 01:00 PM time tomorrow for continual and wrap up of hearing after discussions**

03:45- 03:55 PM

Sr Adv Singhvi: Right to marry along with a scheme for its implementation already exists. Petitioners are only asking for non discriminatory right to access to that institution.

Sr Adv Singhvi: Petitioners are only asking for non discriminatory access to rights.

Justice Bhat: 2 spouse of same sex. if one dies.. then what is the kind of estate they will inherit.. if its a so you treat as son and daughter is treated as daughter.. but what about spouse.

CJI: When a male intestate dies then the spouse is the next in kin... now you want to read widow as.... ..we cannot rule in a way that it will depend on agreement of parties... this will open a minefield of future litigation..

Justice Bhat: So we are not reading in, we are not reading up, we are not striking down, not upholding..

CJI DY Chandrachud: Dr Singhvi. we are not writing a blog, we have to write a judgment.

03:56- 04:00 PM

Sr Adv Mukul Rohatgi: If you don't agree to SMA, this court grants us a declaration that we have a right to marry... we need some document saying that we are married.. i cannot take the judgment... we would be asked for proof.. a document of marriage between two individuals can be made under section 18 of the registration act ..that way i stay away from special marriage act also.

**Bench rises, hearing to continue tomorrow at 12:00**

Share this Document :

Picture Source :