New Delhi: Legal validation for same-sex marriages
'Very notion of a man and a woman, as referred to in the Special Marriage Act, is not an absolute based on genitals'
New Delhi : The Supreme Court on Tuesday made it clear that it will not go into the personal laws governing marriages while deciding the pleas seeking legal validation for same-sex marriages and asked the lawyers to advance arguments on the Special Marriage Act. A five-judge constitution bench headed by Chief Justice D Y 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". "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 S K Kaul, S R Bhat, Hima Kohli and P S Narasimha. 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)."
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. Solicitor General Tushar Mehta, appearing for the Centre, 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.