[Same Sex Marriage Recognition] Can't deny link between Special Marriage Act and Personal Laws: CJI chandrachud

While hearing the arguments by the petitioner's side on Day 4 in the plea seeking recognition of same sex marriage, CJI DY Chandrachud today remarked that the link between Special Marriage Act, 1954 (SMA) and personal laws could not be denied.

"Before the personal law was codified, Marriage and adoption were governed by custom and uncodified Hindu law, the Mitakshara. What the Hindu Code bill did was it codified all this, the SMA was an exception for interreligious and inter-caste marriage..it created an exception..therefore even the argument that we confine it to SMA would create a non-religious framework for marriage for same sex couples..", the CJI said.

These remarks came to be made by the CJI on hearing the submissions of Senior Counsel, Dr. Menaka Guruswamy, who argued that at present, what was being sought from Court was a reading into the SMA. She added that once this once done, all other statutes would fall into place.

The CJI also questioned Guruswamy on how far the Courts could go on laying down the law.

"Take Puttuswamy for example, it arose from Aadhar.. the concluding part asked the Parliament to take steps as per Sri Krishna Committee.. There are cases where the court has laid down a framework, like Vishaka, but the test is- how far does the court go? All your submissions have some bearing on how we understand the impact of our decision..". -CJI

Justice Ravindra Bhat, who was hearing the matter virtually today, also observed that the Court's job is to look at workability, of not just what the petitioner's were presenting before Court. "....the hard task you are saying we will leave it for later.. but how many litigations will we see.. that will come to us or other courts..", the judge added.

On Dr. Guruswamy's submission that they did not wish to separate SMA and personal laws, but for now suggest interpretative techniques, Justice Bhat said,

"You are going to raise more litigations, there may be many who would want to preserve their traditions, you do not speak for all.."

Court also observed that many would not participate in the present litigation only because they would not want to break away from their traditions.

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.

Last week, while hearing the matter, CJI had reflected on the psychological implications of domestic violence in a household on children.

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

To this the CJI had 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?"

Notably, 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".

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