Plea for Marriage Equality Day #9

The respondents reiterated that Parliament was the only competent authority to recognise marriage equality.


The 9th day of the Marriage Equality case concluded today. After 5 days of hearings, the Respondents concluded their arguments against the legal recognition of non-heterosexual marriages. Most of the arguments made today were reiterations of the stance that Parliament was the competent authority to make changes on the matter and not the SC. 

Additional Solicitor General Ms. Aishwarya Bhati, anchored her argument on the welfare of children. She argued that because the State had an interest in child welfare, it could regulate the meaning of marriage. Procreation through a biological, heterosexual union is the norm and the sacrament of marriage. When the Bench pointed out that adoption is an option, even for unmarried persons, Ms. Bhati suggested that adoption is the exception and not the norm. Moreover, even adoption is extensively regulated by the State to ensure children went to nurturing homes. At the core of her arguments was the belief that only a heterosextual household would be the most nurturing environment for a child.

Mr. Sai Deepak, representing a women’s welfare organisation, took a different stance. He claimed that if a legal change was sought to alter the institution of marriage, a declaration by the SC was not the way. A social discourse was needed.  Interestingly, Mr. Deepak also argued that by seeking the declaration of rights from the SC, the petitioners were taking away the powers of the President to assent to a law. 

In the second half of the day, Sr. Adv. A.M. Singhvi commenced the rejoinder arguments on behalf of the petitioners. 

Mr. Singhvi offered suggestions on how to make the provisions of the Special Marriage Act workable. He said that for provisions of the SMA that intersect with other legislations such as the Hindu Succession Act, the rules for heterosexual couples could be applied to LGBTQIA+ couples. That is,  Hindu-LGBTQIA couples would have the same succession rules as Hindu- Heterosexual couples under the SMA. The Bench appeared unconvinced. They asked how this would be possible in provisions where the wife was given special rights under the law. In a same-sex couple, who was the “wife” and what rights could they have? 

The hearings are  expected to conclude tomorrow after a long 10 days of arguments. 

During todays hearing, CJI Chandrachud indicated that the SC will deliver judgments in two big constitution bench cases tomorrow. Decisions are expected in the much awaited Maharashtra political crisis case, and the power tussle between the Union and the State Government over the control of civil servants in the NCT of Delhi.

Stay tuned to SCObserver for  updates from the Supreme Court.