Same-Sex Marriage Controversy: Centre Warns of Personal Law Disruption While Advocates for Inclusion

Today, the Supreme Court of India continued hearing the arguments of petitioners seeking legal recognition for queer marriages in India. Advocate Arundhati Katju, while addressing the Constitution bench, urged the Top Court to issue a positive declaration that marriage solemnised under Special Marriage Act and parties to such marriage will be entitled to all rights & obligations, notwithstanding gender identity & sexual orientation.

Katju argued that the LGBTQ community is part of the larger society and that their parents also long to see the day when they get married. She further submitted that queer couples will come to courts with claims, as these issues arise, just as heterosexual couples have, from the time codification of matrimonial laws began. She also urged the bench to make a negative declaration binding the state to not deny rights & obligations to married couples whose marriage has been solemnised under SMA, only on ground of sexual orientation or gender identity.

Justice Bhat observed that there could be other same-sex couples from the same religion, and that all permutations and combinations must be taken into consideration. Katju then spoke about the ‘human experience’ of having children, which is a part of the ‘human experience’, and explained that LGBTQIA+ couples might long to have children. She further pointed out that the legal non-recognition of their marriage adversely impacted these couples with children, as the law renders one partner a stranger to the other, and the child a stranger to one of their parents, under the law.

Katju also highlighted the internationally recognised principle of the best interest of the child and emphasised that the Supreme Court had categorically stated that such couples must be protected from any harm being caused to them. She added that the state and its instrumentalities also ‘rose to the occasion’ and given them protection.

Senior advocate Jaideep Gupta, appearing on behalf of QUASI, a collective of queer individuals and straight allies at Indian Institute of Science and sister institutes and an intervenor in the present petitions, also made a similar argument relating to the ‘family values’ of Indians. He said, “It is a misconception to say family values Indians cherish will be affected. It is because of these family values – so that they may enjoy and practise those values – that LGBTQ couples wish to get married. All values we cherish will come into effect if they are permitted to marry.”

The centre, in its affidavit, said that the notion of marriage itself necessarily presupposed a union between two persons of the opposite sex.

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022

Counsel for Petitioner: Advocate Priya Puri and Others

Counsel for Opposite Party: Advocate Arvind Kumar Sharma and Others

Order Date: 26.04.2023