Same-sex marriage in India: CJI Chandrachud says 'no bar in our law to having any form of ceremony'

Indian Supreme Court on 27 April continued the 6th day of hearing before the Constitution Bench to decide on the legality of same-sex marriages in the country. During the hearing, Chief Justice of India DY Chandrachud made a profound argument saying that there is no bar in Indian legislation from having any form of ceremony and therefore, the larger question is about legal recognition of the marriage.

"In other words, suppose a same sex couple says that we're inviting a group of 25 friends and we will have a marriage ceremony. In law, there is no prohibition. You also agreed to that. Somebody may have reception, ceremony," CJI Chandrachud said.

The bench comprised Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.

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Upon CJI's argument, Justice Kohli submitted, "What you're saying is that there could be a right to cohabit and give it a name of relationship which is sanctified but that will have no obligations on state to recognise it statutorily."

CJI DY Chandrachud urged Justice Kohli to go step by step on the argument. "Once you recognise that there is a right to cohabit, then it is the obligation of the state that all social impact of cohabitation has legal recognition."

The arguments also centered briefly around the notice provision in marriages in general. For context, the Supreme Court on 20 April said the Special Marriage Act's requirements for a 30-day advance notification of desire to marry were deemed to be deeply patriarchal and to subject vulnerable couples to societal "invasion."

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"Just that matter about notice provision. That is capable of being handled by any other bench. Issue applies equally to heterosexual & same sex couples," CJI said Thursday.

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Incestuous relationships argument by SG Tushar Mehta

Solicitor General Tushar Mehta arguing in favour of the Indian government said that if same-sex marriages are provided a legal status petitioners' arguments could one day be raised to defend incestuous relationships.

"Visualise a situation, when a person is attracted to those persons who are mentioned in prohibited relationships. Incest not uncommon in the world and world over it is prohibited...Suppose a person is attracted to his sister, can they say we are consenting adults, we're entering into activities privately and we claim our right of autonomy, choice. Based on that very argument can someone not challenge this definition (of prohibited degrees)? Why this restriction? Who are you to decide with whom?" SG said in the court during the hearing.

Responding over this Chief Justice of India DY Chandrachud remarked, "That will be far-fetched." "We used to treat even this as far-fetched," the SG replied.

CJI said, "Sexual orientation or your autonomy as an individual can never be exercised in all aspects of marriage including the entry into marriage, the prohibited relationships, the grounds on which marriage can be dissolved...these are all subject to regulation by law. So these are very far fetched for anybody to even argue before us that orientation is so absolute that I can therefore commit an act of incest. No court will ever countenance this."

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