Same-sex marriage hearing | SC: Parliament has power to legislate… how far can court go

Hearing the petitions for the fourth day, the Bench, which includes Justices S K Kaul, Ravindra Bhat, Hima Kohli and P S Narasimha, referred to Section 21A of the SMA which says that for Hindus, Jains, Sikhs and Buddhists who marry under the Act, questions like intestate succession will still be governed by their personal laws.

“Section 21A is a departure to preserve the application of personal laws in the case of Hindus, Budhists, Sikhs and Jains… The remit of this is very clear, that you will revert to personal law… When we say husband and wife includes spouse, what could happen is if tomorrow someone dies due to an unforeseen accident and there is no will, then necessarily you will revert to Hindu Succession Act and the surviving spouse will be deprived,” Justice Bhat told Senior Advocate Menaka Guruswamy, who said a declaration of marriage by the court should also spur consequential benefits flowing from Acts like payment of gratuity Act and provident fund Act.

“I think the most important social security which is provided to spouses… is your entitlement upon the death of a spouse… Now if we declare using the SMA… for the moment let’s take it for granted that it’s a simple act of reading down or reading up the statute. But then can we stop at that and say we will go so far and no further? What happens if there are two Hindu women or men who are married and one of them dies? Can the court say today then we will not go into what will happen in the case of intestacy? Because you have Hindu Succession Act saying if a Hindu dies intestate, property will devolve in following manner,” the CJI told Guruswamy. “If we have to go into this, how does the court avoid getting into other issues which are intrinsically interlinked… The difficulty is once you cross the terrain, there is no stopping then,” he said. The hearing will continue on Wednesday.