"No Absolute Concept Of Man, Woman": Supreme Court In Gay Marriage Hearing

Those present in the proceedings don't represent the views of the nation and the court must first examine if it can at all hear this matter, Solicitor General Tushar Mehta said on behalf of the centre.

His remarks came before a five-judge Constitution bench led by Chief Justice of India DY Chandrachud, which was hearing the requests - termed as “mere urban elitist views” by the centre yesterday. The bench also comprises Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha.

The parliament is the only constitutionally permissible forum to decide on creation of a new social relationship, asserted the top law officer. “We are still questioning whether it's for courts to decide on its own,” he said.

On this, the Chief Justice said the court can't be told how to make a decision and that it wants to hear the petitioners' side. He said the arguments must steer clear of personal marriage laws and focus only on the Special Marriage Act. The court will continue hearing the petitioners' arguments till Thursday.

The right to same-sex marriage should be allowed in view of the earlier court orders and the judgment decriminalising homosexuality, argued senior advocate Mukul Rohatgi for those seeking legal sanction to same-sex marriages.

On the CJI seeking to know their demands, Mr Rohtagi sought that the Special Marriage Act should mention ‘spouse' instead of man and women. The concept of marriages has changed, he argued. “We cherish and desire the same institution as marriage as it is respected in the society. Now under the Domestic Violence Act, even live-in relationships are allowed,” Mr Rohatgi said.

“We seek a declaration that we have a right to get married. That right will be recognized by the state as under the Special Marriage Act and the marriage will be recognized by the state after declaration of this court. This is because even now we are stigmatized - even if we hold hands and walk. This is even after Article 377 judgment,” added Mr Rohatgi.

“There is no absolute concept of a man or an absolute concept of a woman at all,” Chief Justice Chandrachud remarked after Mr Mehta submitted that the Special Marriage Act's intent has been for the relationship between a “biological male and biological female”. “It's not the question of what your genitals are. It's far more complex, that's the point. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals,” the Chief Justice said.

Advocate Menaka Guruswamy, also arguing for the petitioners, said it's a question of an individual's rights. “Marriage is a question of rights. I am not able to notify my partner for life insurance. I cannot buy insurance from the Supreme Court Bar Association for my family,” she said.

In its submission yesterday, the centre said a court order recognising same-sex marriage would mean a virtual judicial rewriting of an entire branch of law. It had also said the court must refrain from passing such “omnibus orders”.