Senior Advocate Jayna Kothari, appearing for a transgender activist, argued that the notion that a family always has a father and mother may not be correct.
“There are situations where one spouse has died or that they are separated, but none of these situations are different than the heterogenous ones. Is a family different just because gender identity is different? Thus, this should fall under Article 21. Right to family is recognised under article 21 and, thus, right to marry also has to be granted to same-sex couples,” she said.
When Guruswamy argued that marriage is a matter of conscience under Article 25, Justice Bhat posed the question,
“Can we presuppose the creation of law? We are in a situation where there is no civil rights act…so how do we intervene…We are one step forward and one step backward…both things have to go together…This right has to go with a law. No right is wider than Article 21 but still here when we speak of offence it has to be through a law and in some cases legislative vacuum had to be remedied by parliament. You are stitching verdicts and say that there is a right to same-sex marriage.”
Source: Barandbench
