The Supreme Court on Thursday asked the center to find a way to provide basic social benefits to same-sex couples
Published Date – 06:20 AM, Fri – 28 April 23
New Delhi: The Supreme Court on Thursday asked the center to find ways to provide same-sex couples with basic social benefits, such as joint bank accounts or a named partner in an insurance policy, even if their marital status is not legally recognized, as courts appear to be able to grant legal recognition to same-sex marriages. Recognition falls within the purview of the legislature.
The bench, headed by the Chief Justice of India and including Justices SK Kaul, S. Ravindra Bhat, Hima Kohli and PS Narasimha, said: “Look at the deep nature of our culture, what happened in 1857 and after, you get the Indian Penal Code , we imposed it as a Victorian moral code…our culture is very inclusive, very broad, and that’s probably one of the reasons our religion persisted even after foreign invasions, because of the inclusive, deep nature of our culture.”
The bench told Solicitor General Tushal Mehta, who represents the centre: “We understand our limitations as a court, there is no doubt about it. There are a lot of questions, of course you put your arguments on the legislative side, there are a lot of questions on the administrative side …we don’t have a model, it would be inappropriate to design a model, but we can certainly tell the government how it looks, how the law has gotten so far…’
Class-specific problems can be addressed, Mehta said.
The chief justice said: “We take your point of view to see if the court is going to go into the legislative arena, you’ve made a very strong argument for that, you’re going to legislate. That’s not your remit, that’s the job of parliament or state legislatures …but beyond that, our laws have gone too far now.”
“What can the government do now to ensure that these cohabitation or association-based relationships, they have to be recognized in terms of creating conditions of safety and social welfare, while we also ensure that in the future these relationships are not socially excluded.”
Mehta argued that while same-sex people have basic rights such as living together and choosing a partner, they cannot be labeled as marriage.
The Chief Justice said: “Once you recognize the right to cohabitation, homosexual relationships are no longer a one-time event in people’s lives, they can also be a symptom of an ongoing emotional, social and physical relationship. Once you recognize the right to cohabitation If the right is a fundamental right, then for you it is impossible to seek any legal recognition at all… because once we accept the fact that same-sex couples have the right to cohabitation, then the state has a corresponding obligation to at least recognize that cohabitation must be legally recognized… …we’re not going to get married at all.”
“Cohabitation couples … can they have a joint bank account, nomination on the insurance policy.”
These are human concerns, Mehta said, “I share them, the government shares them, and we have to find solutions from that perspective”.
“You can call it a marriage or you can’t call it a marriage, but some label is necessary,” the bench said.
The Chief Justice said, “We want some broad sense of union, and we also realize that representative democracy has to achieve so much in our country…a couple in a same-sex relationship is perfectly acceptable. In this case, if The child goes to school, does the government want the child to be considered a single parent…it doesn’t have to go to the point of marriage. Doesn’t the child have the benefits of cohabitation where the child lives?”
“There is a problem, then both must be acknowledged.”
Mehta proposes that it’s more of a sociological issue, child upbringing, child development, these are hypothetical situations.
The judge noted that long-term cohabitation creates a presumption of marriage because, in the past, where the marriage certificate or registration was.
It said that when courts said recognition was not necessarily recognition of marriage, it could mean that recognition entitles them to certain benefits, and that the intercourse of two people does not have to equate to marriage, “not marriage, but some label is required”.
The Supreme Court asked the Center to review it on May 3, and its response to social benefits was that same-sex couples can get social benefits even if there is no law recognizing their marital status.
The Supreme Court is hearing a flurry of petitions seeking legal sanctions against same-sex marriage. The center told the Supreme Court that the requirement for same-sex marriage was “a purely urban elite view aimed at social acceptance” and that recognizing the right to same-sex marriage would mean a virtual judicial rewrite of an entire branch of the law.
