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Synopsis

The Chief Justice of India DY Chandrachud today reflected on the psychological implications of domestic violence in a household on children.

The CJI led constitution bench was hearing the case concerning recognition of same-sex marriages and the issue of adoption was being discussed between the bar and the bench. Currently, the adoption laws and CARA (Central Adoption Resource Authority) guidelines only stipulate adoptions for heterosexual couples.

Senior Advocate KV Vishwanathan appearing for one of the petitioner(s) stated, "Central Adoption Regulation Authority rules do not permit adoption by a single member.. unless they are married".

To this the CJI said, "What happens when there is a heterosexual couple and there is domestic violence..what kind of impact on children.. so much for being heterosexual.. what about father coming back home drunk thrashing up the mother and asking money for alcohol?"

It is noteworthy to mention that a petition for intervention was lodged with the apex court in which the NCPCR asserted that the social and psychological effects of adoption by same-sex parents have been demonstrated in studies.

The plea stated that according to a study conducted by Dr. Paul Sullins of the Catholic University of America, "emotional and developmental problems are twice as prevalent in children with same-sex parents compared to those with opposite-sex parents".

The Senior Lawyer further added before the bench that the idea behind marriage and procreation being the end goal of it, should not be placed at such a high pedestal.

The CJI seemed to agree and said that the issue of deciding whether recognition of same sex marriage should be given importance should be based on the fact that the couples assert for similar rights from a marriage and not just procreation. He went on to state that procreation was slowly becoming less important for many couples as they were moving towards birthing just one child. 

"People are moving away from the notion of have more than one child, even my chauffer, he has one daughter.. its on awareness. Even people are moving away from that notion of having a boy...," the CJI noted.

The bench also comprising Justice SK Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, Justice PS Narasimha is hearing arguments by the petitioner(s) seeking recognition of same sex marriage in India. It is day 3 of arguments and it was CJI's assertion today that he would expect to hear the case like the Ram Janmabhoomi matter, which meant that the case should be heard on a day-to-day basis.

On Mental Health and Article 21

Senior Advocate R. Ramchandran argued for a Dalit woman and her partner from Punjab from the Other Backward Caste category, on the skeletal aspect of Article 21 of the Constitution. He pointed out to the court, among other things that there was a need to look at the recognition of same sex marriages from perspective of maximising mental health and happiness.

"Facets of Article 21 which need to be further highlighted are two: My right to health would include my right to have appropriate medical decisions taken for me by the person whom I love, and so often in such situations there is an alienation from parental families... The other facet is: If I am gay or lesbian or any other category, then my health and happiness depend on a fulfilling union with a person of my choice... and its an aspect of mental health...," the senior lawyer said.

On Privacy Rights and Special Marriage Act's language

Senior Advocate AM Singhvi also continued his arguments from yesterday and said the Special Marriage Act (as is being currently discussed from lens of same sex marriage recognition) in itself is currently problematic because it requires that a notice be declared in public if two persons intended to marry.

 

"As per section 4, conditions of marriage, you require an affidavit to say that you are getting married after fulfilling all these conditions, but after two months if a spouse says that these conditions are not satisfied..
Now my point is, what is being served by these Sections 5-9 of SMA, it is serving PATRIARCHY. This is an invitation to disaster and violence...my spouse has no problem but you please come.. This is unconstitutional, why do I have to tell the world that we intend to get married, and invite objections.. it is my personal decision, my personal autonomy, this is against the privacy... Now my point is, what is being served by these Sections 5-9 of SMA, it is serving PATRIARCHY. This is an invitation to disaster and violence...my spouse has no problem but you please come..," the senior lawyer argued.

He added, "SMA is a framework that departed from personal laws, so in that framework are you going to evolve with time or not...."

To this, the CJI replied, "Looking at India, we have already reached the intermediate stage by decriminalizing homosexuality..now we necessarily contemplate that these people can have stable marriage-like relationships..now we have to see if the statute can include such marital relations"

Singhvi pointed out that there was an exclusion of homosexuals, even though the importance of marriage was duly understood by the Indian society.

Senior Advocate Raju Ramachandran on the other hand said that the language of the statute was very much capable of including persons of the same sex for purposes of marriage. 

"Kindly turn to Section 4 of SMA. The provision uses words like persons, party. Use of male and female for enumerating age, these words are not suffixed with the word partner or party. Therefore, I want to point out that the language of this Act is capable of accommodating a situation like ours."

The Court will continue hearing arguments in the petition(s). 

A Constitution bench of the Supreme Court comprising Chief Justice of India DY Chandrachud, Justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli is seized with the same-sex marriage petitions.

Earlier last month, the Supreme Court had ordered that the pleas seeking recognition for same-sex marriage be heard by a five-judge Constitution bench on April 18 for final disposal.

 

Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions)