NEW DELHI: The idea behind same-sex marriage is more complex than sex alone, Chief Justice of India D.Y. Chandrachud said on Thursday as he headed a five-judge bench hearing arguments on legalisation of same-sex marriage.

As the third day of the televised hearing concluded, the much-attended hearing received mixed bag of flattery and brickbats, media said.

All through the day India patiently awaited a judgement, a law, on granting legal sanction to marriage between same-sex couples.

Chief Justice Chandrachud said the chief justices before him had not set up constitution benches because of the kind of pressure which is there in terms of the inflow of matters.

“If constitution benches really have to go on, you know, with five judges leaving their regular works.... That is why chief justices before me have not constituted constitution benches because you don’t know the kind of pressure. Every evening I ask what is the filing and how much is the disposal,” he said

In a nutshell, what Justice Chandrachud said:

Just in the case of heterosexual couples now with the spread of education, the pressures of the modern age, increasingly, couples are either childless or single child couples

“There are no absolutes, as I said, even at the risk of getting trolled,” he said. “It is not the question of what your genitals are. It is far more complex, that’s the point. So, even when the Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals.”

What happens when there is a heterosexual couple and the child sees domestic violence? “Will that child grow up in a normal atmosphere? Of a father becoming an alcoholic, coming home and thrashing the mother every night, and asking for money for alcohol.”

Evolving notion

Legalising same-sex marriage requires us to redefine the evolving notion of marriage, Mr. Chandrachud said. “Because, is the existence of two spouses who belong to a binary gender a necessary requirement for marriage?”

With the spread of education, the pressures of the modern age, increasingly people are moving away from the notion that you must have a boy,” he reflected.

“Even populous countries like China are losing on demographic dividends. Young, highly educated don’t want to have children – that’s a matter of choice.”

He said the Indian government has no data to show that this (same sex marriage) is an urban elitist concept.

“State cannot discriminate against an individual on the basis of a characteristic over which the person has no control,” he said. “Same-sex couples seek the same benefits of marriage.”

Indian courts had earlier decriminalised homosexuality. “By decriminalising homosexuality, we have not just recognised treating relationships between consenting adults of the same gender, but we’ve also recognised that people who are of the same sex would even be in stable relationships.”

Legalising same-sex marriage “requires us to redefine the evolving notion of marriage. Because is the existence of two spouses who belong to a binary gender a necessary requirement for marriage?”

Published in Dawn, April 21st, 2023