On April 27, the Supreme Court said that granting legal recognition to same-sex marriages falls within the legislature’s dominion. The Court said that the hearing’s objective in hearing the same-sex marriage case is to provide social and other benefits, including legal rights, to same-sex couples without the label of marriage, Bar and Bench reported.
It is reported that at least three judges on the Constitution bench hearing the case concurred with this view while hearing the petitions on legal recognition of same-sex marriages.
The Chief Justice of India (CJI) DY Chandrachud said that the Constitution bench would not go into marriage, however, the bench was inclined on the right of two persons of the same sex to co-habit and give legal recognition to the same.
Furthermore, the CJI said, “Once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationship.. and once you say that right to cohabit a fundamental right, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition.. we are not going into marriage at all.”
The CJI’s statement was in response to Solicitor General Tushar Mehta’s submission that same-sex couples have the fundamental right to cohabit, however, the same cannot be given the label of marriage. “Right to love, right to cohabit, right to choose a partner, right to have a sexual orientation is a fundamental right but there is no fundamental right to seek recognition of that relationship as a marriage or in any other name,” the SG said.
Justice PS Narasimha suggested that recognition does not need to be as recognition of marriage, and it can be the recognition entitling same-sex couples to certain benefits. “When we say recognition, it need not be recognition as marriage. It may mean recognition which entitles them to certain benefits. The association of two people need not be equated to marriage,” he said.
Justice S Ravindra Bhat expressed similar views. He said, “Not marriage but some label is needed.”
The CJI said that the Government of India is being pushed to address the issue of same-sex marriages due to the fact if the judiciary enters this arena, it would become a legislative issue. “Why we are pushing the government is because we understand your point that entering this arena will require legislation. So now what? What does the government want to do with cohabitory relations? And how can a sense of security and social welfare be made to ensure that such relations are not ostracized?” he questioned.
SG Tushar Mehta said that the Government of India could assist in removing the existing problems and difficulties but cannot grant the legal recognition or status of marriage. “The modality adopted is important since the term used can also be partner.. if not that then it may be counter productive,” Justice Bhat opined.
The CJI asked the SG to discuss this with the appropriate authorities and get back to the Court on May 3, the next hearing for the case.
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