Same-sex marriage: Former SC judge Indu Malhotra explains why legislation is essential in India

India's Supreme Court, in a landmark ruling on Tuesday (Oct 17), rejected the pleas for the legalisation of same-sex marriage while clearly stating that it is for the parliament to make laws and the court can only scrutinise and interpret them.

The verdict delivered by the five-judge bench of the Supreme Court left many puzzled who failed to understand why the court, even after sympathising with the LGBTQ community and being vocal about their rights, failed to give legal recognition to their marriage and threw the ball in the court of lawmakers.

Speaking exclusively to WION, former Supreme Court judge Indu Malhotra explained why legislation is needed in the case of same-sex marriage.

"The legal recognition of a relationship like marriage has some legal incidents. There are many incidents in such homosexual relationships. The cases of separation or break up in such relations are as frequent as among heterosexuals. If the homosexual couple adopts a child and then separates, where does the child go? You will have to protect the rights of the child also," said Malhotra, who was India's first woman advocate to become the judge of the apex court.

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"I think we made a lot of progress in this country, but legal recognition means legal implication. You have to protect many aspects of marriage like divorce, domestic violence, separation, alimony and child custody. So you can't do it away with a court verdict. These are matters of legislation and this is how they have to evolve. There are many legal aspects to be considered in it and I also believe that there has to be legislation on it," she added.

Malhotra further emphasised that cases of domestic violence are involved in such relationships, about which people are unaware. Hence, she said that since there are so many legal incidents, this has to come through the law.

Constitution of the committee – a hope ahead for homosexuals' equal representation?

Speaking about the constitution of the committee which will look into the issues of homosexuals as was said by Chief Justice of India D Y Chandrachud, Malhotra said, "Once the committee does the preliminary exercise they will do legislative drafting and then they will table it in the Parliament. The committee constituted will certainly get people to represent the LGBTQ community from the well-established NGOs, which have been working in this direction and have good public representation."

She further emphasised how the government is sympathetic towards homosexuals and is willing to pave the path for them in the future which ensures equal rights to them as well.

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"The very fact that today they are accepted socially and homosexuality has been decriminalised, is the biggest progress with respect to transgenders, homosexuals, gays and lesbians. There was so much social ostracism against them. Today, all that has gone. They are treated with a lot of sympathy and care. The NGOs which have come up are effectively representing this and today, the government is sympathetic to it. The government is mindful of the evolution of society. Since there is so much upheaval and a lot of public view on this, I think the government will progress on this issue. They are coming out with legislation in phases and it is helping them," she said.

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