Same-sex marriage hearing: SC terms 30-day notice under Special Marriage Act ‘patriarchal’

The CJI further said if the intent behind the notice is to prevent marriages that could end up being unlawful, then the method is not proportional.

Senior Advocate Dr Abhishek Manu Singhvi, appearing for the petitioners, had said that personal laws in the country “don’t discriminate” unlike the Special Marriage Act (SMA) of 1954, while arguing against the mandatory 30-day notice period in it. He asserted that “this is an invitation to disaster and violence”.

Further, on the contention against homosexual couples raising children, CJI Chandrachud noted that “there are no absolutes” as he questioned the impact of domestic violence on children of a heterosexual couple.

“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,” the CJI said.

On the notion that a negative psychological impact would be caused to children raised by queer couples, the CJI noted that the argument was belied by the fact that the law as it stands today already allows single individuals to adopt.

“Incidentally, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt. So the argument that this will create a psychological impact on the child is belied by the fact that today as the law stands, it’s open for them to adopt. It’s just that the child loses the benefits of parenthood of both the parents,” the CJI observed as reported by Live Law.

The petitioners have argued that if straight couples who cannot procreate are allowed to marry, why not them. Senior Advocate KV Vishwanathan argued, “Centre says that by our very nature, we cannot procreate. Is procreation a valid defence from keeping 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.”

The petitioners also argued that if the right to marry a person of choice is guaranteed under Article 21 (Protection of Life and Personal Liberty), “I should not have to give notice to exercise my fundamental right”, as the Special Marriage Act demands.

On Wednesday, CJI Chandrachud had noted that there was no data from the government to back its contention that same-sex marriage was an “urban elitist idea.”

The five-judge Constitution bench had begun hearing a batch of petitions concerning the legalisation of same-sex marriages on Tuesday. While the petitioners argued that the fundamental rights of the LGBTQ community were being restricted, the government raised preliminary objections to the court hearing petitions seeking same sex marriage.