Same-sex marriage: A 5-judge Constitution Bench headed by the Chief Justice of India DY Chandrachud on Tuesday heard a batch of petitions seeking legal recognition of same-sex marriage in India. The court said that they are not going into the personal laws adding the absolute concept of a man or a woman is not based on genitals.
As arguments were underway in the court, Senior advocate Kapil Sibal said that the States should be heard in this matter.
Meanwhile, Solicitor General Tushar Mehta apprised the top court that the Centre has filed a petition raising the preliminary objection on the maintainability of the plea.
SG Tushar Mehta said that the debate which is to happen is about the creation or conferring of the socio-legal institution and whether it should be done by the forum of the court or parliament.
CJI DY Chandrachud said that they will hear the Centre's submission on that at a subsequent stage.
As the hearing continued, the top court said that it will not go into the personal laws and asked the lawyers to advance arguments on 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 5-judge bench.
The five-judge constitution bench headed by Chief Justice DY Chandrachud termed the issue involving the pleas “complex” and said the very notion of a man and a woman, as referred to in the Special Marriage Act, is not “an absolute based on genitals".
On being pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of various religious groups if the apex court were to hold same-sex marriages 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).”
Acceptance has to come from within society, says SG Tushar Mehta
Solicitor General Tushar Mehta referred to the laws on transgenders and said there are several rights such as the right to choose partners, privacy right, 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.
SC says we are not going into personal laws
“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,” the bench said.
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.”
What is Special Marriage Act, 1954?
The Special Marriage Act, 1954 is a law that provides a legal framework for the marriage of people belonging to different religions or castes.
It governs a civil marriage where the state sanctions the marriage rather than the religion.
(With inputs from PTI)
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