Same-sex marriage: CJI Chandrachud says concept of man or woman not absolute

The Supreme Court on Tuesday began hearing a batch of pleas seeking legal sanction for same-sex marriages with the Union government insisting its prelimnary objection over that the issue must be discussed in Parliament.

Solicitor General Tushar Mehta, appearing for the government, told before the five-judge Constitution Bench headed by Chief Justice DY Chandrachud that the court must first examine if it can hear the matter at all.

Mehta told the bench, which also comprises of Justice SK Kaul, SR Bhat, Hima Kohlu and PS Narasimha, that the subject with which the apex court is dealing is virtually the creation of a socio-legal relationship of marriage which would be the domain of the competent legislature.

"We also would like to point out what would be the repercussions. If the court was to take it upon itself in the judicial forum to take this call, the sum and substance of my application would be, if I were to say in one line, the debate which is to happen with respect to the subject matter of creating, conferring a sanctity, legal recognition of a socio-legal institution, should that be the forum of this court or the forum of the parliament," he argued.

"This is not an issue which can be debated by five individuals, very learned, on that side, five individuals on this side, five very brilliant minds of this court, no doubt about it," he said, adding, "None of us knows what are the views of a farmer in south India, a businessman in north-east. This will have social and other ramifications."

The bench said it would consider all these aspects.

After SG Mehta, the bench proceeded to hear agrguments in the matter and senior advocate Mukul Rohatgi.

Rohatgi, appearing for some petitioner cited the 2018 Supreme Court judgement decriminalising homosexuality and argued that in view of the same, gay marriages should also be allowed.

Rohatgi said that Special Marriage Act should mention 'spouse' and not man and woman. He argued that concept of marriage has changed and that queer community desires and cherishes marriage as it is respected in society. He also alluded that under Domestic Violence Act, even live-in relationships are allowed.

The petitioners are seeking a declaration that they have the right to get married under the Special Marriage Act, and for the state to recognize their marriage after the court declares it. They argue that they still face stigma even after the Article 377 judgment, and that the current law only recognizes relationships between biological males and females.

However, Chief Justice Chandrachud pointed out that the concept of a man or woman is not absolute and goes beyond just biological genitals.

Advocate Menaka Guruswamy emphasized that marriage is a matter of individual rights, and not being able to marry affects practical aspects of their lives, such as obtaining life insurance for their partner or family.

Published on: Tuesday, April 18, 2023, 11:42 AM IST