Plea for Marriage Equality Day #10

The petitioners concluded their rejoinder arguments and the Bench reserved judgement.


After 10 days of intense arguments, the marriage equality hearings concluded today. The Bench heard back-to-back rejoinder arguments from 11 counsels appearing for various petitioners and reserved judgement in the case. 

The petitioners passionately argued for the Special Marriage Act to be read, to include LGBTQIA+ marriages. They stated that the purpose of the SMA was to validate socially ostracised marriages and acknowledge the freedom of choice. Therefore, reading in queer marriages under the SMA did not defeat its intent as claimed by the Union. 

On the Union’s argument about the workability of the SMA and its impact on other laws, the petitioner’s line of reasoning was clear– complications in the process were not a good reason to deny a constitutionally compliant interpretation of the law. Mr. Saurabh Kirpal said that marriage is a vehicle for equal rights in society; therefore, even a slightly unworkable interpretation of the SMA was better than having no rights at all. 

The Union had also argued that non-heterosexual marriages were opposed to social morality.The petitioners argued that constitutional morality superseded social morality. Owing to the NALSA (2014), Puttaswamy (2017) and Navtej Singh (2018) judgments, sexual orientation and gender identity were expressions of fundamental rights. Therefore, the evolving constitutional morality demands an inclusive reading of the SMA to include LGBTQIA+ marriages. 

Lastly, the petitioners maintained that the repercussions of reading up the SMA were not as catastrophic and unimaginable as the Union made them out to be. Questions of law will arise from time-to-time, but the Courts were well equipped to answer them. The SC could pass a declaration recognising an LGBTQIA+ person’s right to marry until Parliament made laws to address clashes with gender-specific legislations. 

Will the SC recognise an LGBTQIA+ couple’s right to marry? Will it use the Special Marriage Act as the tool to grant this right? Stay tuned to SCObserver to find out. 

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