Same-Sex Marriage Issue: No Absolute Concept Of Man Or Woman Based On Genitals, Says CJI Chandrachud

Same-Sex Marriage Hearing: The Supreme Court termed the issue 'complex' even as it clarified that it would not go into the personal laws governing marriages.

A file photo of LGBTQ members taking part in a pride parade in Mumbai

Source : PTI

The Supreme Court on Tuesday orally observed that there was no absolute concept of a man or a woman and the question was not of "what your genitals are". The Supreme Court made the remarks while hearing a batch of petitions seeking legal sanction to same-sex marriage.

A five-judge Constitution bench, headed by Chief Justice DY Chandrachud, termed the issue involving the pleas "complex" even as it clarified that it would not go into the personal laws governing marriages.

"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 SK Kaul, SR Bhat, Hima Kohli and PS Narasimha.

The court will continue hearing the pleas on Wednesday.

READ | What Is Same-Sex Marriage Plea? All About The Batch Of Petitions Supreme Court Is Hearing

Solicitor General Tushar Mehta, appearing for the Centre, said, "Biological man means man with biological genitals...If I have genitals of a man but otherwise I am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for 160 statement? There are several issues. This would be better if gone into by Parliament. The Parliament has eminent parliamentarians. Parliamentary committees have all parties as members."

The Supreme Court also asked lawyers to advance arguments on the Special Marriage Act after it was pointed out the difficulties and ramifications for the Hindu Marriage Act and personal laws of other religious groups if the top court were to hold same-sex marriages valid.

"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)," the court said.

The Special Marriage Act allows civil marriage for couples who cannot marry under their personal law.

Referring to laws on transgenders, SG Mehta said there were 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," SG Mehta said, as quoted by PTI.

He said the problem arises when a person, who is a Hindu, wants to avail the right to marry within the same sex while remaining a Hindu.

Senior advocate Rakesh Dwivedi backed the Centre's objection to legal validation of same-sex marriages and said all states were necessary parties in the matter and needed to be heard.

Earlier in the day, CJI Chandrachud rebuffed a request by the Solicitor General to hear the Centre first on the maintainability of the pleas. 

SG Mehta told the Constitution bench that the issue raised by the Centre as regards the maintainability of the petitions should be heard first. He said that he was raising this request since the issue falls within the domain of Parliament.

The CJI, however, said that the bench would hear the petitioners first for sometime to understand the broad issues.