New Delhi: The Supreme Court on Thursday asked the Centre to find a way to give same-sex couples basic social benefits, like joint bank accounts or nominating a partner in insurance policies, even without legal recognition of their marital status, as it appeared that the court could be agreeing that granting legal recognition to same-sex marriages falls within the domain of legislature.
A bench headed by Chief Justice of India and comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha said: “Look at the profound nature of our culture, what happened that in 1857 and thereafter, you got the Indian Penal Code, we imposed as it as a code of Victorian morality… our culture was extraordinarily inclusive, very broad and it is possible one of the reasons why our religion survived even after foreign invasions because of inclusion, the profound nature of our culture.”
The bench told Solicitor General Tushar Mehta, representing the Centre: “We understand our limitation as a court, no question about it. There are so many issues, of course you have made your argument on the legislative side, so many issues on the administrative side… we not have a model, it will not be appropriate to devise a model but we can certainly tell the government that look, how law has gone so far now…”
Mehta said that class specific problems can be addressed.
The Chief Justice said, “We take your point, look if the court were to go in the legislative arena, you have made a very powerful argument on that, look you will be legislating. This is not your remit, this is for Parliament or state legislatures… but short of that, our law has gone so far now.”
“Now what the government can do to ensure that these relationships based on cohabitation or associations, they must be recognised in terms creating conditions of security, social welfare, and while doing that, we also ensure for future that these relationships should ceased to be ostracised in the society.”
Mehta contended that while same-sex persons have the fundamental right to cohabit, choose a partner etc, the same cannot be given the label of marriage.
The Chief Justice said: “Once you recognize the right to cohabit, homosexual relationships are not really one off incidents in the life of persons, they may also be symptomatic of a sustained emotional, social, and physical relationship. Once you recognise that right to cohabit is a fundamental right, then to say to you cannot seek any legal recognition at all… because once we accept the fact that same sex couples have a right to cohabit then there is a corresponding duty on the state to at least recognise that cohabitation must find recognition in the law… we are not going into marriage at all.”
“Cohabitating couples… can they not have a joint bank account, a nomination in the insurance policy.”
Mehta said these are all human concerns, “which I also share and also the government shares, and we must find a solution from that point of view”.
The bench said: “You may or may not call marriage, but some label is necessary.”
The Chief Justice said, “We want some element of broad sense of coalition, we are also conscious of the fact that so much which representative democracy must achieve in our the country… one of the couple of same sex relationship can adopt no bar at all. In such a situation, if a child goes to school, does the government want a situation where the child is treated as a single parent child… you do not have to go as far as marriage in this as well. Can the child not have the benefit of cohabitation between the two people in whose home the child resides.”
“There is a concern, then both have to be recognised.”
Mehta submitted that there is a more of a sociological problem, rearing of the child, development of the child, these are hypothetical situations.
The bench observed that long cohabitation raises the presumption of marriage, because in old times where were the marriage certificates or registration.
It said that when court says recognition it need not be recognition as marriage, it may mean recognition which entitles them to certain benefits, and the association of two people need not be equated to marriage and “not marriage but some label is needed”.
The top court asked Centre to come back on May 3, with its response on social benefits that same sex couples could be granted even without legal recognition of their marital status.
The top court is hearing a batch of pleas seeking legal sanction for same-sex marriages. The Centre has told the Supreme Court that demand for same-sex marriage is a “mere urban elitist views for the purpose of social acceptance”, and recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law.
