CJI DY Chandrachud said orally during Thursday’s marriage equality petition hearing that Indian culture was “extraordinarily inclusive” and that the British Victorian morality forced Indians to abandon their cultural ethos and exclude queer people. When Solicitor General Tushar Mehta argued that the queer movement began in India around 2002, a constitution bench that included the Chief Justice, Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha was hearing a series of pleas for the legal recognition of queer marriages in India.
CJI Chandrachud stated that the British imposed Victorian morality on a different culture and criminalized homosexuality in India, and that queer representation was a part of the Indian culture that was “extraordinarily inclusive.” The Solicitor’s submission was rejected by CJI Chandrachud.
He said-
“You go to our best sanctuaries and assuming that you take a gander at the draftsman, you won’t ever say it is indecent. It demonstrates our culture’s depth. What happened truly was from 1857 and from there on we got the Indian Correctional Code. We imposed it on a completely different culture like a British Victorian moral code. Our culture was extremely diverse and extremely inclusive. The profound nature of our culture may have been one of the reasons why our religion survived even foreign invasions.
SG Mehta went on to say that the State should take a long time to recognize any personal relationships because these were social-personal relationships. He said-
“It can perceive just when genuine state interest perceives that guideline is essential. Therefore, heterosexual couples’ marriages should not have been regulated at all. However, that’s what society felt you can’t allow individuals to wed at whatever stage in life, commonly and so on.”
Additionally, he argued that there are currently no data on the characteristics of children raised by queer couples.
“This (eccentric privileges) development began quite a while back. We lack information. This is the first or second generation. Therefore, what is the impact on children? Very few may have adopted; no reliable data exists.
Different entries examined in the court today can be seen as here and here.
The essential contentions raised by SG Mehta today were that-
1. The parliament must decide whether or not to include queer marriages in the Special Marriage Act because doing so would necessitate significant legislative rewriting.
2. The court may also ignore some provisions that have been introduced as a matter of public policy, such as additional grounds for women in divorce cases, as part of the process of updating the Special Marriage Act.
3. The Special Marriage Act specifically includes references to personal laws in several sections that are interconnected with personal laws. In this way, the acknowledgment of eccentric relationships in India would include reevaluation of individual regulations by courts.
SG Mehta additionally gave different resolutions and arrangements of regulation which whenever reworked as unbiased regulations, would make complexities. He stated, “150 sections from various other statutes serve as an illustration.” As a result, my lords may fail to provide meaning, resulting in complications rather than solutions to the issue. Perhaps, in its wisdom, the Parliament will draft comprehensive legislation if it deems it necessary.
He mentioned the Dowry Prohibition Act of 1961, the Protection of Women from Domestic Violence Act of 2005, the Indian Penal Code, the Indian Succession Act of 1925, and other similar laws in this context. “Succession Act provides for widow, widower, husband, wife, father, mother, and so forth,” he stated. Suppose
marriage is allowed. After the death of someone, they adopt. In a LGBTQ couple with a father and mother, who will be treated as the father and who will be the mother? Your lordships cannot anticipate this conundrum. The requirements for adopting a child vary. If it’s a man, he can’t adopt a girl child who is younger than 21 years old. She cannot adopt a male in that manner if it is a female. Therefore, it cannot be gender-neutral. Kindly refer to the Indian Penal Code for an illustration at this point.” Section 10 defines “man” and “woman.” All male individuals are referred to as “man,” while all female individuals are referred to as “woman.” Area 304B IPC for settlement demise additionally has “spouse” and “wife”.
SRISHTI BHARDWAJ, BCOM LLB 8TH SEM
