SC Same-Sex Marriage Hearing Highlights: Petitioners argue ‘straight couples who can’t procreate are allowed to marry, so why not us’

Referring to another US case from 1967, Loving v. Virginia, he argued that the same defence was taken even before the SCOTUS in this case, where the judge had said,
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”

However, advocate Vishwanathan pointed out that the Court emphatically rejected this holding that the miscegenation statue rests solely on a distinction based on race and that such classification did not amount to ‘accomplishment of some permissible state objective’. It further concluded that the denial of freedom of marriage, which is fundamental to a person’s existence, would amount to a violation of the equality principle.

To say that heterosexual marriages are the norm and are foundational to the existence of state has a similar ring to the theoretical underpinnings of the miscegenation statues law, advocate Vishwanathan says. Miscegenation refers to interracial sexual relationships. He then cites the US case of State v. Gibson (1871)

Viswanathan: Briefly touching upon the trite position of law that as far as the enforcement of fundamental rights is concerned, the Constitutional Courts do not have to await action by the legislature, as held by Hon’ble Justice RF Nariman in Navtej Singh Johar, which he quoted, “These fundamental rights do not depend upon the outcome of elections. And, it is not left to majoritarian governments to prescribe what shall be orthodox in matters concerning social morality. The fundamental rights chapter is like the North Star in the universe of constitutionalism in India”

CJI: Same sex couples seek the same benefit of marriage except for procreation and there is a whole range of benefits that cohabitation and marriage provides.

Justice Bhatt: Marriage is a gateway that opens up so many possibilities and rights, some of which you can enjoy and those which you cannot be a part of.

CJI: In the case of heterosexual couples now with the spread of education and the pressures of the modern age, increasingly modern heterosexual couples are either childless or single child couples. Therefore, even populous countries like China are losing out on the demographic dividend. As populations are becoming more elderly, why? Because the young who are highly educated do not want to have children. That’s a matter of choice

Vishwanathan argues: What is also of great interest is a law in the anvil of the 118th report of the parliamentary standing committee, wanting a comprehensive law for everybody that harmonises Hindu adoption, maintenance, juvenile Justice which would also cover the juveniles from the trans community . This is by our own parliamentary committee. Referring to a time when long back in our country what was required was the welfare of the child, as per the law laid down in Annie Besant vs Krishnamurti, he added that it  didn’t matter whether they were a homosexual or heterosexual couple bringing up the child. 

CJI: What if there’s a heterosexual couple and the child sees domestic violence. Will he grow up in a normal atmosphere, if his alcoholic father comes home and thrashes his mother every night? There are no absolutes, as I said. Even at the risk of getting trolled.

Right before this Advocate Vishwanathan said that all evidence points to how homosexual couples can raise a child just as well as a heterosexual couple can.

Contending that marriage is more than procreation, he said it’s often referred to as a union of souls, and a happy marriage develops one’s full personality even. Adding that he’s seeking a declaration, he argued that this is not a legislative exercise where we can wait for the parliament to enact a law

"This would give us dignity, equality and prevent us from being seen as an anathema to society or oddity or alien. It percolates down to the society. If the court has said so, our society is a law abiding society so it will be followed. Today why is the Basic Structure accepted? Because it is grounded in sound reasoning given to it by your lordships' institution."

Senior Advocate KV Vishwanathan: 'Centre says that by our very nature, we cannot procreate. This is no answer. Is procreation a valid defence from negating us from effects of marriage?None of the marriage statues prescribe any upper limit for marriage. Women beyond 45, who are unfit for pregnancy, are allowed to marry. Heterosexual couples who cannot have children are allowed to marry'

Under the SMA, a notice that the parties intend to marry is displayed in the registrar’s office and objections, if any, are invited. These objections could be related to one of the parties being married earlier or such aspects that would render the marriage void (not accepted in law) subsequently. Here, the CJI says if the intent behind the notice is to prevent marriages that could end up being unlawful, then the method (notice inviting objections) is not proportional. 

The test of proportionality is applied to examine executive action when fundamental rights are violated. The test requires the extent of violation to be proportional to the intended objective of the state.

Senior advocate Ramachandran traces the history of the Special Marriage Act. Coming to the history of “notice” he said that these laws surprisingly originated from a 1753 Act of the British Parliament, whose name speaks for itself. It was titled “An Act for the Better Preventing of Clandestine Marriages 1753”.  Therefore, he argued, that a provision which originates in a preventive statute now continues through the SMA, which self- confessedly is an enabling statute. He mentioned how the current 30-day notice period under the SMA is the longest ever. If you go the 1753 Act, it was three Sundays, probably because the weddings were in church.

CJI: So the effect is to defer your right to get married at a time when you desire to and it can’t be regarded as procedural because the impact is on your substantive right to get married at the time that you choose.

Ramachandran said, “If my fundamental right to marry is read into Article 21, then I can’t be asked to give notice of an exercise of my fundamental rights at a future date in the context of a notice regime.”The requirement of giving a notice for a fundamental right, is designed to enable parental families and other busybodies to create roadblocks, he said. 

Agreeing with the CJI, Raju added that his right to health should include the right to have appropriate medical decisions taken for him by the person he loves. Often in such situations there is an alienation from the parental families as to who will sign the ICU form, the consent form which creates a situation sans a legal caregiver.

“My health and happiness depend on a fulfilling union with a person of my choice,” he added. It includes mental health, he also said. However the bench informed him that this has already been covered. Here the CJI pointed to a whole segment in his judgment in Navtej Johar which deals with the right to health & mental health.

Coming to Article 14, Raju mentioned that in the context of the question put by Justice Kohli to Singhvi yesterday, where she said, “Is it a restriction or a lack of recognition?”, he responded by saying, “To this, the respectful answer is, it is a lack of recognition and that lack of recognition leads to the denial of equal protection of laws within Article14 . The NALSA judgement also specifically deals with this. Therefore the lack of protection is sufficient to create a situation of unconstitutionality…"

CJI: "...which can be avoided by an appropriate reading of this Act"

Article 14 deals with the right to equality 

On the point of age limits for marriage, Raju said the for a male+ trans man union or a trans man+trans man union, age 21 would be the requirement. Correspondingly the 18 years requirement would be attracted for a female-female, female-trans, or trans- trans union.  He said this difference in age is attributable to the patriarchal notion that the male is breadwinner and the sole earner, while the woman is the child-bearer who is fertile at 18

“The lack of logic which will still remain, is something we would just have to swallow, for the reason that the very age difference which the law prescribes is rooted in the traditional patriarchal perception.”

The CJI said, “There is a Bill being considered for equalising the age as well”

Coming to Section 4 of the SMA, which says, “Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of marriages, a marriage between any two PERSONS may be solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:—
(a) neither PARTY has a spouse living; and neither PARTY is incapable of giving a valid consent to it in consequence of unsoundness of mind.

Coming to Section 4 (c) he points to the part where it says “the male has completed the age of twenty-one years and the female the age of eighteen years.” He says please note that neither the word male nor female here has the suffix saying party or partner. 

Without intending to contend that the union we are asking for was contemplated by this Act, my endeavour is to point out that the language of this Act enacted in 1954 itself, without your lordship having to do “violence to language” is capable of accommodating situations like ours, he said.

Having offered that overarching perspective, Sr Adv. Raju said he would be offering another interpretation of Section 4 of the SMA to fortify the interpretation given by Singhvi. There is another aspect of 14,21 and 25 (freedom of conscience) which he said he will briefly touch upon. Third, is the aspect of notice where the submissions made will be fortified WRT to the background and context in how these provisions came into being and how they’re out of place.

Seeking a protocol for protection of such couples, advocate Raju said, “For people like us, any judgement of this court will be incomplete without a protocol being put into place, on the lines of the Shakti Vahini protocol, which was laid down in the case of heterosexual couples, seeking protection from khap panchayats. A similar protocol is imperative”

Read about the Shakti Vahini verdict here

Adding that the reason for stating the background of these petitioners and others like them was that the institution of marriage is not just a gateway to various socioeconomic rights , but it is also a societal protection from their natal families, Sr adv Raju added, “Such couples don’t have enlightened parents or understanding families. The two petitioners before your lordships had to move the Delhi HC for protection orders, which are on record. Therefore, the point I wish to emphasise is that the recognition of their marriage is an important protection to them. A societal recognition which protects them from society and from their own parental families, in given cases.”

Adv Raju Ramachandran: Petitioner number 1, Kajal, is a Dalit woman, from the town of Muksar in Punjab and her partner, the second petitioner is Bhavna, an OBC from Bahadurgarh, Haryana. Bhavna works as an accountant in a company in Chandigarh and Kajal works in a bakery in Chandigarh as a baker. She is therefore who justice Bose had in mind. Contending that this should put the assumption made in the government’s affidavit that they are urban elite, to rest, he said their submission was “careless, unnecessary and insensitive.”

Sr. advocate Raju Ramachandran begins his arguments by turning to what Justice Vivian Bose said in 1956. “Our Constitution, enacted by We the People of India, is meant for the butcher, the baker and the candlestick maker.” Justice Bose had said the constitution exists for the common man and even for those who have businesses at stake.

Ramachandran then said that in 1982, a constable driver of the Delhi Police came before this court asking for equal pay for equal work. Thereafter he moved on to quoting from a “stirring” paragraph of Justice Chinappa Reddy, who said, “True, he is the merest microbe in the mighty organism of the State, a little clog in a giant wheel. But the glory of our Constitution is that it enables him to a directly approach the highest Court in the land for redress. It is a matter of no little pride and satisfaction to us that he has done so”.

He said he won’t read further but this is the context in which he will explain who the petitioners he is representing are

Finally, Singhvi said he has come to the end of his submissions and referred to Obergefell vs Hodges, the landmark 2015 case that legalised same-sex marriages across the USA.

He quoted the judgement: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

In his concluding remarks Singhvi mentioned author Oscar Wilde, “a homosexual in an era where this was something very very different. He fell seriously ill, came out and died.” He went on to quote Wilde and added, “And alien tears will fill for him pity's long broken urn. For his mourners will all be outcast men, and outcasts always mourn.”

Singhvi further states all core constitutional values, like individual dignity and autonomy, are involved. Calling the Special Marriage Act a discriminatory regime, he gave a summary of the five-pronged test of proportionality, which says that a law must have:

a) a legitimate state object
b) a rational nexus between rights and infringing measures or the suitability test
c) The rights and measures should be least restrictive, this is the necessity test
d) Proportionality must be balanced between the severity and the object it seeks to achieve; and
e) Sufficient safeguards against abuse

To this, the CJI remarked the proportionality doctrine in the Media One judgement. Read what happened in this case and what the SC said on freedom and national security. 

Singhvi said, “If you have conditions of marriage stipulated and I satisfy them all, a form is given and if those conditions are found false, either spouse or the outside world can challenge them and declare the marriage voidable. Then what is the point of this notice period? Even in heterosexual marriages, I have shown that it’s unconstitutional and serves no purpose.” He added, “It’s serving patriarchy, as Justice Bhatt said earlier today.”

To Justice Bhatt’s response that the law was created at a time when women didn’t have agency, Singhvi responded, “It’s an invitation to disaster and violence… Your khap panchayats, or somebody in a different form gunning for you. What is the point of all this milord?”

The petitioners’ side moves to arguments against notice period in the Special Marriage Act, discussed earlier in the hearing as well. Reading from his written compilation, Singhvi drew attention to Parsi and Christian marriages, adding that requiring a notice of prior intent to marry was unusual. He said, “This is peculiar to the Special Marriage Act. That before I intend to marry you I must declare publicly and wait.”

“You are invading my privacy for objections to be invited. Milord, which married couple has to announce to the world and wait for one month, in the heterosexual world? It’s my personal, decisional autonomy. It’s the heart of my privacy to decide,” Singhvi added.

Section 5 of the Special Marriage Act, requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage. Singhvi yesterday said this invites vigilante groups and others to interfere.

Justice Kaul: The debate would be should we stop short of saying that under this act, such a marriage is possible and can be registered, following which many eventualities will arise. Can we tend to all of them?

Responding to this, Singhvi said recognition of such issues by themselves is important. “Marital rape is not recognised in this country. It’s still pending. That’s a different debate but as of today, rape is not a recognised crime in marriage. It can be grounds for cruelty or divorce but I’m on a different point. If you were to recognise the issue we are canvassing within the marriage for same sex persons under SMA, you would be recognising marriage within the act.”

Justice Hima Kohli asked whether the court must go into the nitty gritties of the issue when there are several shades and layers to them. Singhvi said yes, adding that these things will iron out with time. 

Adding that apart from age restrictions, Singhvi said "prohibited degrees of relationship" would apply simultaneously to both heterosexual and homosexual couples. 

This means that if two people are within prohibited degrees of relationship then their marriage won’t be considered valid in the eyes of the law, such as relations of brother and sister. But the application of this principle varies according to community customs in India. Section 5(4) of Hindu Marriage Act says that one of the conditions for valid marriage is that “the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two.”

Singhvi adds that the focus here is on the discriminatory parts of provisions of law. “We are not challenging every part or every provision but the discriminatory parts of the gendered provisions. We are not concerned with every provision”, he says.

When Singhvi said that provisions like rape won’t apply to those in such relationships, the court asked him why not. Singhvi then went on to state rape was a criminal offence and defined it as “non-consensual penile vaginal penetration” and so it would not necessarily apply to all same-sex relationships.

However, Singh acknowledged that the definition was expanded after the report of the Verma Committee, which was constituted to re-examine laws on sexual assault and harassment after the Nirbhaya rape case of 2012. 

“According to me it should be covered under the same-sex penetrative offence, too. There are two ways, Section 27 would apply to penetrative assault even for the same-sex. Alternatively lordship could draw the line by saying it’s a criminal offence defined in a heterosexual context,” Singhvi said.

Singhvi said here that the minimum age of marriage, as exists for homosexual people at the moment, will also apply: 18 for women and 21 for men. The age will apply according to the gender the person identifies with. 

He also said of transgender people, "If the question arises what about trans categories, my submission would be that in a majority of case, you would be able to sort them into slots which they identify with", saying in most cases transgender people are likely to identify as either men or a women. 

CJI Chandrachud said, “Looking at the constitution, we’ve already reached the intermediate stage. The act of decriminalising homosexuality contemplates that people belonging to the same sex would be in marriage like relationships. When we decriminalise 377, therefore we necessarily contemplate that you can have a stable marriage like or emotional relationship, not just physical. Is the existence of two spouses who belong to binary genders necessary for marriage or is the law contemplating that this is not necessary for marriage?"

“We are not here to utilise the text of the constitution to read down a statute or strike down the statute. That’s one element of the impact of the constitution. Another thing we are doing is trying to expand on the concept of constitutional guarantees,” the CJI added.

Justice Bhatt said of what Singhvi is propounding on the Special Marriage Act, “It provided a framework for concept of marriage which transcends contemporary understanding to comprehend an evolving dynamic. Used in a constitutional sense it only provides a framework that’s broad enough to assimilate later developments.”

Here is our explainer on what this act is.

Reading an article on parliament-made laws’ interpretation, which Singhvi says is the heart of this case, he points to three tests to be carried out: 1) General thrust of the legislation 2) Court’s institutional capacity 3) The fundamental rights involved.

The CJI, speaking of the Special Marriage Act, says, “Here you’re leading us on a path of statutory interpretation. Are you really asking us to read into the ‘spouses’? Your principle premise is that when the legislation was enacted in 1954, the object of providing matrimony for people who are not relying on their personal law of marriage. The parliament was intending to provide an avenue to people beyond the governance of marriage so to speak.”

CJI: Since the last 69 years our law has really evolved. When you decriminalise homosexuality, you also realise that these are not one-off relationships. They also constitute stable relationships. By decriminalising homosexuality we have not just recognised… relationships between the same gender but have also recognised implicitly the fact that people of the same sex would be in stable relationships.” He says, “Surely that law is capable of being broadly read, according to you, so as to take into account their stable relationships as well.”

Singhvi responded to this by saying, “Let me put it bluntly: When you enacted the law, you did not have homosexuals in mind. You may not have considered them.”

Senior Advocate Abhishek Manu Singhvi begins. He has been told to complete his submissions before lunch.

Singhvi read from a judgement. At this, the CJI interjected to clarify that the case he was referring to dealt with the application of an Act to unmarried relationships between heterosexual people and there was no basis to exclude people in homosexual marriage-like relationships. Singhvi agreed and pointed out that if something is being applied to the heterosexual group, it would be discriminatory to not apply it to the homosexual group.

At the beginning of the hearing, the CJI clarified that the petitioners side must complete their submissions by 4 pm today. When advocate Karuna Nundy requested for one more day’s time, he pointed out that they have been given three full days for doing so. 

As the hearing begins on Day 3, here is a quick recap of proceedings so far: The Supreme Court had said that it will steer clear of the area of personal laws but will only examine if the right can be conferred under The Special Marriage Act (SMA), 1954.

Chief Justice of India DY Chandrachud observed there is no data from the government that "this (same-sex marriage) is urban or something." The Centre had earlier stated in its application to Court that what has been presented on the subject by the petitioners is “a mere urban elitist view” and “the competent legislature will have to take into account broader views”. Read our full report here.

Last month in a separate case, the Centre recently told the Supreme Court, through an affidavit filed by the Union Ministry of Health & Family Welfare, that the exclusion of transgenders, gay people, and female sex workers as blood donors by including them in the “at risk” category for HIV, Hepatitis B, or C infections is based on due consideration of scientific evidence. Read more about that here

Out of the 32 countries in the world that recognise gay marriage, at least 10 countries have recognised same-sex marriages by court rulings, whereas the remaining 22 countries allowed it through legislation, Human Rights Campaign, a US-based LGBTQ advocacy group said. Here is an explainer we did on that

Earlier, reiterating its demand that States and Union Territories be heard before deciding petitions seeking legal recognition of same-sex marriages, the Centre has in a fresh affidavit informed the Supreme Court that it has begun a consultative process with states and UTs on the issue and urged the court to wait till the same is complete before going ahead with the case. Read more about that here

Court rises for the day. Arguments to continue tomorrow

Singhvi cites the Rent Control Act as an example of interpreting the law in keeping with the times. “The protection given by the Rent Act to the surviving partners….the law was enacted in the days that the tenant was likely to be a man, with a dependent wife, it was understandable that the preference was given to the widow over anyone else in the family. But in 1980 that preference extended to widowers…”

Singhvi highlights another issue raised by the the Centre that same-sex marriage is against cultural and traditional understanding of marriage. 'Special Marriage Act was enacted as being agnostic to faith,' he says. 

CJI Chandrachud, extending the argument, asked if Singhvi's stand was that since the SMA was intended to be 'agnostic to faith', it would not be a 'leap of faith' to read it as now being 'agnostic to sexual orientation' as well.  

An earlier version of the SMA was enacted in 1872. It was re-enacted in 1954 with provisions for divorce, etc. In 1952, when the Bill was proposed, the SMA was considered radical as it was the first law mandating monogamy in marriage. It was opposed by conservative parliamentarians for encouraging inter-faith and inter-caste marriages. Here is our explainer on that. 

Justice Ravindra Bhat, on insurance, asks if any particular statute or the Insurance Regulatory and Development Authority prohibits insurance for LGBTQ persons. 

In response, Singhvi says that individuals do not have a problem but for spouses, group or family insurance is not permissible. 

Senior advocate Menaka Guruswamy also responds: "It entirely depends on how the Court interprets marriage. The primary issue to open a joint bank account is that you have to be spouses."

CJI Chandrachud observes there is no data from the government that "this (same-sex marriage) is urban or something." The Centre, in its application earlier, had stated that what has been presented to the court on the subject by the petitioners is “a mere urban elitist view” and “the competent legislature will have to take into account broader views” of various sections.

Singhvi cites an "illustrative, not exhaustive" list of gateways opened up by marriage. Adoption, surrogacy, interstate succession, tax exemption, tax deductions, compassionate government appointments. "Only marriage is required for these, everything else follows -- compensation to dependants, appointment of nominees for receipt of post retirement benefits, spousal communication, right to bodily remains and so on."

Hearing resumes. Singhvi is now arguing that marital status is a gateway to other legal and civil benefits such as tax benefits, inheritance and adoption. CJI interjects and says it is a misconceotion that gay or lesbian couples cannot adopt. 

“Incidentally, as the law stands today, one of them can adopt. So this whole argument that it will have a psychological impact on the child is denied by the fact that even today, as the law stands…once you have decriminalised homosexuality, it is open for people to live in together and one of you can adopt. Of course the child loses the benefit of parenthood so to speak,” he observed.

The arguments have been paused for lunch. Till they resume, take a look at the long legal battle the LGBTQ community has had to wage in India, in this explainer we did in 2018

While hearing the petitions seeking legal recognition of same-sex marriage, CJI DY Chandrachud on Tuesday clarified that the hearing’s scope would be limited to developing a notion of a “civil union” that finds legal recognition under the Special Marriage Act. Here is our explainer on civil union and how it is different from marriage.

Section 5 of the Special Marriage Act, requires parties to give a 30-day public notice of their intention to marry. The public notice is displayed at the office of the marriage officer, inviting potential objections to the marriage. Singhvi is pointing that this regime invites vigilante groups and others to interfere.

Singhvi argues that it is not the State alone which imperils the core values of equality, liberty and fraternity. "Private groups and non-State actors, which are entrenched forces over the years, whether in society or forms of organisation- we also need protection from those groups."

As Rohatgi concludes his submissions, senior advocate Abhishek Manu Singhvi takes over. Singhvi is asking the Court to specifically strike down the requirements of notice period under the Special Marriage Act.

Rohatgi refers to Section 36 & 37 of the Special Marriage Act which gives rights only to women, regarding alimony and maintenance by husband. 

'Actually my Lord, apart from anything else, so many years have gone by (since the law was passed) that this could be otherwise  unconstitutional today to say that only a husband will pay (maintenance) to the wife.,' he says

'Maintenance under the Hindu Marriage Act is either way. If the wife is earning much more then the wife will pay. This (under the Special Marriage Act) is unconstitutional today.'

The minimum age of marriage for men and woman is different under the law. It is 18 years for women and 21 for men. Judges discussing how that would stand affected if same-sex marriage is recognised.

Justice Hima Kohli asks what words can replace "man" and "woman"? Rohatgi suggests gender neutral "person" and for references to "husband and wife" as "spouse".

Rohatgi walks the Court through provisions of the Special Marriage Act, pointing out references to male and female that would have to be changed if same-sex marriage is recognised.

The Court's declaration recognising same-sex marriage, Rohatgi argues, will drive society to accept it. "Whether Parliament will follow it up with a law or doesn't follow it up with a law, that (the Court's ruling) is what drives the society in times to come...two years or five years, whatever it be."

In 2018, in the case involving Hadiya, a Muslim woman, who had chosen to convert and marry her partner, the SC had said: "The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable." Justice DY Chandrachud was part of the bench that decided the Hadiya case.

Rohatgi is going through a list of precedents where the Supreme Court recognised the right to choose a partner --- both within and outside marriage --- as a fundamental right.

"If it is the right of heterosexuals, it is jolly well our right because we are equal human beings entitled to the benefits of the Constitution in the same manner as anyone else."

“Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives.,' Rohatgi argues, adding that human sexuality cannot be defined narrowly as a means to procreation. 

Rohatgi counters the Centre’s argument that marriage is only between a biological man and a biological woman. 

He says, “Sexuality cannot be construed as something that the State has the prerogative to legitimise only in the form of rigid marital procreational sex.”  

“This is exactly the argument on the other side. Biological man, biological woman…their union is marriage…marriage will lead to procreation and that is the order of nature and nothing more…”

Rohatgi says, “What I am really requesting for, a declaration of marriage, is really a paraphrasing of this. That when I walk into a public space with my partner, knowing that the law in the state recognises this union as marriage, nobody will raise a finger of stigma against me.”

Rohatgi argues that relegating homosexuality to private spaces would in effect reiterate the heterosexism of the public space.

Senior Advocate Mukul Rohatgi begins with listing out key legislations that will have to be modified if same-sex marriage is recognised. 

Gratuity Act, Pension Act and Juvenile Justice Act provide for adoption but 'You can't adopt in a live-in unless you are married,' he says.