No absolute concept of man, woman: SC on same-sex marriage
Hearing a batch of pleas seeking recognition of same-sex marriages and the government's petition questioning the maintainability of the former, the Supreme Court on Tuesday observed that there is no absolute concept of a man or woman. The pleas urged the top court to rule in favor of the matter, while the government said the matter should be left for Parliament to decide.
Why does this story matter?
India reportedly has around seven crore LGBTQ+ people and while queerphobia is rampant in the country, it also enjoys legal sponsorship. In a historic step in 2018, the SC decriminalized consensual gay sex, recognizing the liberty of homosexual adults. In a subsequent move for social acceptance and dignity in a heteronormative society, the LGBTQ+ community is seeking the right to have a legal marriage.
States must be heard: Solicitor General
Appearing for the government, Solicitor General Tushar Mehta said the subject of marriage is on the concurrent list and thus, there is a possibility that one state might agree with it and the other might not. Therefore, he argued that the matter was beyond the court's purview. He said rules under Special Marriage Act (SMA) or Hindu Marriage Act (HMA) differ based on states.
Since LGBTQ+ individuals equal citizens, marriage must be recognized: Rohatgi
Meanwhile, senior advocate Mukul Rohatgi, appearing for the petitioners, said that nothing said by Mehta hinges on the maintainability of the pleas. Citing the right to equality enshrined in the Constitution, he said that LGBTQ+ persons have equal rights as heterosexual people. He said since marriage and family are respected in society, the same should be recognized in the case of queer people.
Society, concept of marriage evolved over the years: Rohatgi
He added that the SMA was enacted 70 years ago and since then, society has evolved. He suggested the use of the word "spouse" instead of "man and woman" or "husband and wife." He also stated that the concept of marriage has changed over the last 100 years, citing child marriages and temporary marriages.
Notion of gender more complicated than just genitals: CJI
Mehta argued that the legislative intent of the SMA has been the relationship between a biological male and a biological female. In response, Chief Justice (CJI) DY Chandrachud said the biological notion is absolute. "There is no notion," Mehta contended, to which Chandrachud responded that the notion is far more complex than one's genitals. Mehta reiterated that the matter be left to Parliament.
