The Supreme Court of India on Tuesday heard pleas seeking legal validation for same-sex marriages. The five-judge constitution bench headed by Chief Justice D Y Chandrachud made it clear that they would not go into personal laws governing marriages while deciding the case. Instead, they asked lawyers to present arguments on the Special Marriage Act, a law that provides a legal framework for the marriage of people belonging to different religions or castes.
What did the court say?
The bench deemed the issue “complex” and said that the notion of a man and a woman is not “an absolute based on genitals.” Therefore, the Special Marriage Act, which refers to “man and woman,” is not restricted to genitals. The bench stated that personal laws would be kept out of the equation, and all lawyers would address the Special Marriage Act.
“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,” said the bench, which also comprised justices Justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.
Noting the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if same-sex marriages are considered valid, the bench said, “Then we can keep the personal laws out of the equation and all of you (lawyers) can address us on the Special Marriage Act (a religion-neutral marriage law).”
Tushar Mehta vs Supreme Court argument:
Not getting into personal law: The Solicitor General Tushar Mehta, who appeared for the Centre, referred to laws on transgenders and said that there are several rights such as the right to choose partners, privacy, right to choose sexual orientation, and any discrimination is criminally prosecutable. “However, the conferment of socio-legal status of marriage cannot be done through judicial decisions. It cannot even be done by the legislature. The acceptance has to come from within the society,” the top government law officer said.
He said the problem will arise when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu.
“Hindus and Muslims and other communities will be affected and that is why the states should be heard,” the law officer said.
Responding to Mehta’s argument, the bench said, “We are not going into the personal laws and now you want us to get into it. Why? How can you ask us to decide it? We cannot be compelled to hear everything.”
Then this will amount to “short circuiting” the issue and the Centre’s stand is not to hear it all, Mehta said, to which the CJI responded: “We are taking a middle course. We don’t have to decide everything to decide something.”
‘Man and woman is not restricted to the genitals’: On being pointed out that even the religion-neutral Special Marriage Act has the term ‘man and a woman’, the bench said it is not the question of “genitals” and the very notion of the special law having “man and woman” is not restricted to the genitals.
Mehta cited it is restricted to the genitals and added there were several laws which the court will be making redundant inadvertently if it chose to give legal backing to same-sex marriages. He cited the Code of Criminal Procedure’s provision that women cannot be examined after a certain time and suggested that a man could claim not to be a man despite having male genitals.
