New Delhi: Day two of the hearing of pleas on same-sex marriage, saw Senior Advocate Mukul Rohtagi walking the Supreme Court through the provisions of the Special Marriage Act (SMA), which the petitioners are seeking to make gender-neutral. He stated that it was outdated to say that only the husband must pay alimony and maintenance after divorce.
Before arguments began in the court on Wednesday, Solicitor General Tushar Mehta, appearing for the government, told the Bench that the Centre had asked the states to give their views on the matter. On the first day of the hearing, arguments by court and advocates revolved around the declaration of the right to marriage, stigmatisation of the LGBTQ+ community, the notion of a man and a woman and the Special Marriage Act.
Referring to Sections 36 and 37 of the SMA, which gives rights only to women over alimony and maintenance by husband, Rohtagi said, “Apart from anything else, so many years have gone by (since the law was made) that this could be otherwise unconstitutional today to say that only a husband will pay (maintenance) to the wife.” “Maintenance under the Hindu Marriage Act is either way. If the wife is earning much more, the wife will pay. This (provision under SMA) is unconstitutional today,” added Rohtagi.
The minimum age of marriage for men and women is different under the law. It is 18 years for women and 21 for men. Judges are discussing how that would stand affected if same-sex marriage is recognised.
Justice Hima Kohli asked what words can replace “man” and “woman”? Rohatgi suggested gender-neutral “person” and for references to “husband and wife” as “spouse”.
Rohatgi then walked the Court through provisions of the Special Marriage Act, pointing out references to male and female that would have to be changed if same-sex marriage is recognised.
The Court’s declaration recognising same-sex marriage, Rohatgi argued, will drive society to accept it. “Whether Parliament will follow it up with a law or doesn’t follow it up with a law, that (the Court’s ruling) is what drives the society in times to come…two years or five years, whatever it be.”
Going through a list of precedents where the Supreme Court recognised the right to choose a partner — both within and outside marriage — as a fundamental right, Rohtagi said, “If it is the right of heterosexuals, it is jolly well our right because we are equal human beings entitled to the benefits of the Constitution in the same manner as anyone else.” “Sexuality must be construed as a fundamental experience through which individuals define the meaning of their lives,” Rohatgi argued, adding that human sexuality cannot be defined narrowly as a means to procreation.
Rohatgi countered the Centre’s argument that marriage is only between a biological man and a biological woman, saying, ” Sexuality cannot be construed as something that the State has the prerogative to legitimise only in the form of rigid marital procreational sex.”