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Same-sex marriage hearing | The case so far

Right to marry is not absolute, laws regulate marriage, government tells Supreme Court

Solicitor-General says legal recognition of same-sex marriage by making Special Marriage Act gender-neutral should ideally be debated in Parliament, and not in the court

April 26, 2023 08:36 pm | Updated April 27, 2023 07:39 am IST - NEW DELHI:

Supreme Court of India. File

Supreme Court of India. File | Photo Credit: Sushil Kumar Verma

The Centre on Wednesday argued in the Supreme Court that the right to marry is not an "absolute right" and petitioners cannot compel the state to grant legal status to same-sex marriage through a judicial declaration.

"The right to marry does not include the right to compel the state to include a new definition of marriage… the right to marry, even among heterosexuals, is not an absolute right," Solicitor-General Tushar Mehta began the government's response in the same-sex marriage case.

Mr. Mehta pointed out to a Constitution Bench led by Chief Justice D.Y. Chandrachud how several provisions across statutes regulate marriage.

"Law prescribed that a man should marry at 21 years and a woman at 18… now, the law regulates your autonomy here. Bigamy is an offence… here, the law regulates the number of times you can marry. The law even lists the grounds for judicial separation and divorce. Impotence is a ground for divorce… this is a very personal issue. But if it is a ground, you have to spell it out in court for divorce… so, law has a hold on your privacy," Mr. Mehta said.

He asked how the Supreme Court, in a judgment, would conceive the way all these provisions would apply to same-sex marriage.

"Let us see in the case of age of marriage… we do not know who should be 21 years and who should be 18 years… who is the man and who is the woman," Mr. Mehta submitted.

Mr. Mehta said a mere judicial declaration recognising same-sex marriages would not be enough. The fallout of such a declaration would be too numerous, varied and complex for the court.

Varied views

The Solicitor-General said the legal recognition of same-sex marriage by making Special Marriage Act gender-neutral should ideally be debated in the Parliament, and not in the court.

"A debate in the Parliament will be assisted by national views, views of experts, views on impact, effects and what are the implications on several laws… To my knowledge there are at least 160 provisions which cannot be reconciled with a changed Special Marriage Act… No one is on value judgment here. We are just saying that Parliament has already accepted their right of choice, autonomy in terms of sexual preference and privacy in terms of the right to intimate relationship between consenting adults," Mr. Mehta submitted.

He said the Transgender Persons (Protection of Rights) Act, 2019 was the Parliament's response to decriminalisation of homosexuality by the Supreme Court in 2018. The term 'transgender person' in the statute is widely defined to include all spectrums of the LGBTQIA+ community.

He asked the court what the '+' encompassed in the 'LGBTQIA+' community.

"We do not know what the '+' means… There are 72 shades or spectrums or variations… How will you [the court] regulate these varieties of situations… There is 'null gender' and 'fluid gender'... Even for the Parliament, it would be a humongous exercise, leave alone for a judgment," Mr. Mehta said.

He told the court that "the class you are dealing with is an unidentifiable class".

Mr. Mehta said the social institution of marriage was shaped by world religions.

"All religions converge, and do not contradict, in their opinion that marriage is at the heart of the foundation of family and society. They believe that children from the marriage are sacred gifts of the marriage… What is recognised as marriage is a heterosexual union," he said.

Mr. Mehta said the lawmakers had "consciously omitted" LGBTQIA+ community from the purview of the Special Marriage Act.

"What was not intended by lawmakers cannot be added into the Act," he argued.

The law officer said the court should not become a "super-legislature".

"Though the finest intellects may reflect on this here, they still will not make the will of the people," the government contended.

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