The Indian government has requested that the Supreme Court leave the issue of legal recognition of same-sex marriages to Parliament. This comes as the apex court heard a batch of at least 15 petitions seeking legal sanction for same-sex marriages in India. The government, represented by Solicitor General Tushar Mehta, argued that the issue is "very complex" and has a "profound social impact."
Complex Subject Matter
During the hearing, Mehta raised concerns about arguments for the right to choice and sexual orientation raised by the petitioners. He claimed that such arguments could also be used to defend incestuous relationships. Mehta further questioned who would be considered the father or mother of adopted children in non-heterosexual unions, and raised issues related to passports, succession laws, and personal law. Raising concern about petitioners’ demand to read ‘husband and wife’ as ‘spouse’ in Special Marriage Act, Mehta said who will be the father or mother of adopted children in non-heterosexual unions.
“If your lordships were to read “person" in place of husband or wife, one person will have right to claim maintenance from another. Meaning, in case of heterosexual marriages - the husband can claim from wife," he said, according to a report by Hindustan Times.
Reinterpreting Legislation
The Chief Justice of India, DY Chandrachud, noted that reinterpreting provisions of the Special Marriage Act would involve substantial rewriting of legislation. It would also amount to interference in matters of public policy and personal law. Mehta's arguments were opposed by the petitioners, who argued that the court should interpret the law in a manner that reflects changing times.
Grounds for Divorce
Mehta also opposed the petitioners' argument that both partners should have grounds for divorce in a same-sex marriage. He claimed that the Special Marriage Act was enacted for heterosexuals, and giving one additional ground of divorce to one class to the detriment of heterosexuals would be problematic.
Far-Fetched Scenarios
Mehta asked the court to visualize a scenario where a person is attracted to someone mentioned in prohibited relationships. He used the example of a person being attracted to their sister and claimed that such arguments may challenge the definition of prohibited degrees. However, the Chief Justice dismissed this as a "far-fetched" scenario, stating that sexual orientation or individual autonomy cannot be exercised in all aspects of marriage.
