The judgment rendered by five judges constitution bench comprising CJI DY Chandrachud, Justice SK Kaul,  S Ravindra Bhat, Hima Kohli, and PS Narasimha reminded me of the character of Bhisma Pitamah who reluctantly remained on the side of injustice excusing himself for his vow, institutional limitations of the court in this case,  to be the protector of Hastinapur.

In a nutshell, the petitioners sought “legal sanction” to the Marriage of the LGBTQ community and the right to adopt child “jointly”. The judges unanimously refused to read-in the existing laws to grant legal sanction to the marriage of the LGBTQ community.

CJI Chandrachud and Justice SK Kaul concurred to recognise the right of queer couples to Civil Union and “jointly” adopt a child forming a minority view, the other three disagreed and vetoed against the right to be in a civil union and adopt a child “jointly”.

Civil union is a domestic association concept prevalent in certain other countries and is not defined anywhere in statutes or judgments of the Supreme Court of India. It’s a domestic relationship between two people akin to marriage with certain rights with respect to employment, inheritance, property and parental rights – short of a bouquet of rights attached to marriage.

The bench sympathised with the cause but shied away from justice citing the court’s institutional limitations. The lost opportunity reminds me of a quote by Justice Krishna Iyer: Law without justice is an egg without its yolk, and much of its salt”. The court delivered the law and left justice at the mercy of the government if same-sex marriage could be legally recognised.

Observations of the SC have been dissected widely by now, this article gives you a dekko into the contentions of the govt of the day in legally recognising same-sex marriages and how it has no case on it, at least “morally” if not legally.

Contentions Of The Government:

In a nutshell, the contention of the govt is that legalising same-sex marriage or giving it status of civil union will dilute the institution of marriage in general and it will have an adverse effect on society at large.Tushar Mehta, Solicitor General appearing for govt, submitted:

“The institution of marriage occupies a central role in the sustenance and progression of humankind. The prominent components of a marriage are companionship, sexual intimacy, and most importantly, procreation. Marriage (from an individual perspective) serves the purpose of sustaining an individual’s gene pool. From a societal perspective, marriage contributes towards the proliferation of future generations for the sustenance of humankind;

“….It would become impossible to deny legal recognition to practices such as incest or polygamy if non-heterosexual couples are granted the right to marry;

“Both the father and the mother have a significant and unique role in the upbringing of children. In non-heterosexual unions, the child born out of surrogacy or artificial reproductive technology or adopted by the couple would feel the absence of either a father or a mother;

“Granting legal recognition to non-heterosexual unions would dilute heterosexual marriages. For example, in Netherlands, more heterosexual couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non-heterosexual unions.”

Counter View:

There is no denial that the “institution of marriage occupies a central role in the sustenance and progression of humankind”. But like all institutions, marriage too is an organic system and not insulated to change. Hindu marriage is no more a Sanskaar (Sacrament) with the incorporation of provisions of divorce into the Hindu code in 1955.

Sacrament is the meeting of minds. In India, most marriages are arranged, where parties choose the partner on the basis of job, beauty, status, caste, etc., in a span of few meetings. Hence, there’s no meeting of mind, but the fulfilment of criteria and it is a contract in all senses and not a sacrament. No reasonable person will be fooled by this phraseology. Further in 1976, the State incorporated the provision of divorce by mutual consent, which has all the connotations of contract and not sacrament.

Thus, in practicality, it is akin to a contract which can be breached on grounds provided in law. Further, the inability of the courts in granting timely divorce and control by the government has made marriage such a complex institution that the young generation is not very comfortable with the institution “as it is presently” and resultantly a parallel concept of live-in has originated which has legal sanction now through judicial legislation like Indra Sarma vs VKV Sarma.

Therefore, the contention of the government that legalising same-sex marriage or according it civil union status will dilute the institution of marriage is outdated. It’s already diluted and will further; because of overregulation by the government and delay and denial of divorce by courts where people are unhappy in their marriages. Heavens wouldn’t fall if homosexuals are granted with the right of equality of marriage.

Further, it is wrongly premised by the government that the object of marriage is procreation. Undeniably, procreation is the most important aspect of marriage, to preserve one’s gene pool and it being a byproduct of regular sex with a partner. But legally the position is different. Had procreation been the main object of marriage, it would have been a ground for divorce but it is not. Impotency, a ground for divorce, has been read by courts as the inability of male/female to have sex and not the inability to beget a child. So, heavens wouldn’t fall if homosexual couples don’t procreate.

Justice Chandrachur says in the judgment: “Marriage was earlier a purely social institution unregulated by the State. What prompted the State to regulate personal relationships? There are two prominent reasons. The first reason was to regulate the social order. The State regulated social order by firstly, regulating the sexual conduct of persons through marriage, and secondly, by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir.”

In complete agreement with what the CJI said, it is pertinent to add that social order in marriage can’t be seen from the prism of the past. Look at the number of marital disputes in courts and women cells. While not every dispute results in divorce, a conflictive marriage can’t be deemed to be “social order”. Marital disputes are waste of police and judicial time which should be used for issues which concern the nation more.

Coming to the second point of devolution of property based on the legitimacy of the heir, a three judges Constitution bench of the SC in Revansidappa vs Mallikarjun, 2023, held that an illegitimate child has the right to parent’s property in both self-acquired and ancestral, after ascertaining the rights of parents in such property in accordance with Hindu Succession Act, 1956. And this is no judicial legislation.

This is the scheme of law duly enacted by the State. Thus, devolution is no longer a problem area, in any case, individuals have autonomy to a great extent in devolution of their property. Even in the present state of affairs, a heterosexual/homosexual union has the autonomy to devolve its property in the way it wants, though the route is different and longer.  So, heavens wouldn’t fall if homosexuals adopt children.

Conclusion:

The institution of marriage is eroding slowly but certainly, as we evolve into a society which gives credence to individual autonomy over society conventionalism. Yet granting this right to same-sex marriages is important from the perspective of social acceptance. But as Justice SK Kaul said, “….marriage is not an end in itself.”, there’s an alternate to it and a better one. Considering the delay and denial of divorce in the present state, should the marriage turn toxic, it would be wiser for the LGBTQ community to press for civil union rights than legal right to marry.

(The writer is Delhi-based lawyer).

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