The Supreme Court, on Wednesday, May 9, rejected the argument that the crux of marriage is the union between a man and a woman. The five-judge bench led by Chief Justice of India (CJI) DY Chandrachud observed that society has evolved beyond motherhood into parenthood, interjecting the respondent’s claim that gender fluidity is impermissible in a marriage, which as an institution is founded upon the cisgender union, and that a child can only be born out of a heterosexual union.
The main submissions by the respondents against marriage equality were based on child rights when it comes to being brought up by same-sex couples. Additional Solicitor General (ASG) Aishwarya Bhati, appearing for the National Commission for Protection of Child Rights (NCPCR), argued that the basic structure of marriage is the “union of man and woman”. She said that gender fluidity is impermissible in matters where being cisgender is the core, like in the case of a marriage. “Ignoring the rationale of valid classification amounts to perpetuating inequality,” she told the court.
The bench, also comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha replied that parenthood is evolving, and stressed that in any scenario, the welfare of the child remains central. Here is what happened in court on day 9 of the marriage equality hearings.
Agreeing with the court that the welfare of the child is paramount, the ASG argued that a child can only be naturally born through a heterosexual couple. “Thus, the recognition of heterosexual marriage cannot be seen differently from the child's birth and upbringing. Father and mother play complementary roles in bringing up the child. The state is justified in treating homosexual and heterosexual unions differently for that purpose,” she said and contended that while gender can be fluid, the idea of a mother cannot be.
The bench, however, responded by saying that we have gone beyond motherhood and gone into parenthood. “There are single parents too. There is the death of a mother from childbirth, accidents, etc. There is no question of the caregiver not being the father. Likewise, there are adopted children of just a man, a father… It is an evolving scene. What is central to this and what remains unchanged is the welfare of the child,” Justice Bhat observed.
The ASG also argued that the architecture of child-centric laws is carefully crafted with the child being paramount and that any general declaration such as “reading 'spouse' instead of ‘husband’ and ‘wife’ will make the laws related to adoption, assisted reproduction, and surrogacy “completely unworkable.”
While the ASG further argued that adoption is not an alternative to childbirth, the CJI said that there is no compulsion for a couple to have biological children. “Law does recognise that you can adopt for a variety of reasons. You can adopt even if you're capable of biological birth. There's no compulsion to have a biological birth. The law recognises that there may be situations apart from being the "ideal family" and having their own biological children,” he observed.
Senior Advocate Mukul Rohatgi, appearing for one of the petitioners, suggested that either the court agrees to include them under the Special Marriage Act (SMA) or grants a declaration that LGBTQIA+ individuals can marry. “We require a state recognition, a document. A document of marriage by way of an affidavit between two parties saying ‘I take you as a spouse’ can be made under Section 18 of the Registration Act,” he suggested, urging the court to consider this if it was unwilling to modify the SMA.
Other intervening petitioners also made their submissions in the case, which stressed that social acceptability is important when it comes to marriage, and that marriage is a social affair and not just a private one. The petitioners have started submitting their rejoinders.
Senior advocate Atmaram Nadkarni, appearing for the Akhil Bharatiya Sant Samiti, argued that the concept of marriage in Indian society is a creation of an institution by itself and that if the right to marry is granted to same-sex couples, the institution of marriage “would be virtually under an attack.”
Meanwhile, Solicitor General Tushar Mehta submitted that seven state governments have responded to the Union government’s letter seeking comments and views on the issue. Of the seven states that have responded - Manipur, Andhra Pradesh, Uttar Pradesh, Maharashtra, Assam, Sikkim, and Rajasthan - Rajasthan has taken an opposing stand to the petitioners, and the others have said that the issue needs a debate, he told the court.
The bench is to commence the last leg of the hearing by 12 pm on Thursday, May 11.