In a hearing of a batch of pleas seeking legal validation of same-sex marriage, the Supreme Court on Thursday asked the Centre if social welfare benefits can be granted to same-sex couples without legalizing their marriage. The five-judge Constitution bench headed by Chief Justice D Y Chandrachud took note of the submissions of the Centre that right to cohabitation of same-sex partners as a fundamental right cast a "corresponding duty" on the state to recognize its social consequences. The bench further observed that the right to cohabit itself is a fundamental right, and a homosexual relationship is not a one-off incident in the life of a person but may also be symptomatic of a person's emotional and social relationships.
However, the Centre's solicitor general, Tushar Mehta, argued that there is no fundamental right to seek recognition of a same-sex relationship as marriage or in any other name, and there is no positive obligation on the state to recognize all personal relationships. He further added that the government cannot be directed to legislate for the recognition of same-sex marriage.
The bench responded to Mehta's arguments and stated that once the state recognizes that the right to cohabit itself is a fundamental right, it has a corresponding duty to at least recognize that the social incidents of that cohabitation must find recognition in law. The bench raised several issues, including the nomination of heirs in gratuity, provident funds, succession, and parenting in schools, which can be dealt with by the government on the administrative side.
The bench also stated that the issues relating to same-sex marriages are "much more difficult" than the Vishakha case, which dealt with sexual harassment at the workplace, and added that these issues have linkages everywhere, such as adoption, maintenance, and succession. The bench suggested that actions may be taken to deal with problems of same-sex partners by the government in the administrative side, and the court may act as "facilitators" to achieve them.
The bench emphasized that it understood its limitations as a court, but many issues could be dealt with by the government on the administrative side. It added that the law has gone so far recognizing such relationships, and the government should ensure that these cohabiting relationships are recognized in terms of creating conditions of security, social welfare, and ensuring that such relationships are not ostracized in society.
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