Same-Sex Marriage Case Hearing, Day 9: Kapil Sibal Argues Equal Treatment Of Hetrosexual And Non-Hetrosexual Marriages Defeats Article 14

On 10 May — the 9th day for the same-sex marriage hearing, the bench pondered upon the broader question of whether a fundamental right to marry exists.

Senior Advocate Rakesh Dwivedi, for Madhya Pradesh, argued that marriage only recognises heterosexual unions, which are essential for society to perpetuate itself.

He argued that there can be no fundamental right to marry.

On the other hand, Senior Advocate Kapil Sibal argued that there is a right to sexual union, but the right to legal recognition of these unions is a matter for legislative consideration.

Sibal contended that if queer marriages were to be recognised under the Special Marriage Act, Parliament would be barred from debating the issue, which would hinder the organic evolution of law.

He also argued that different instances flow from heterosexual and non-heterosexual marriages, and to treat them equally would defeat the purpose of Article 14.

Finally, Senior Advocate Arvind Datar pointed out that the Special Marriage Act was enacted in 1954 to recognise inter-caste and inter-religious marriages, and therefore, the petitioners cannot challenge the Act on the ground that it violates constitutional principles because it does not include non-heterosexual persons.

The Bench was expected to receive updates on granting certain ancillary rights to queer couples over the weekend, but there was no update. The hearing is expected to conclude today.