"There is no absolute concept of a man or a woman based on genitals": CJI Chandrachud in same-sex marriage hearing

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• Apr 18, 2023 | Dhupali Das

A five-judge Constitution bench led by Chief Justice DY Chandrachud termed the matter underlying the pleas "complicated,"...

Digital Desk: The Supreme Court observed orally on Tuesday that there is no definitive concept of a man or a woman, and the subject was not "what your genitals are." The Supreme Court made the statement while hearing a batch of petitions seeking legal recognition for same-sex marriage.

A five-judge Constitution bench led by Chief Justice DY Chandrachud termed the matter underlying the pleas "complicated," but stated that it will not dive into personal laws governing marriages.

"It's not a matter of what your genitals are. The argument is that it is significantly more complicated. Thus, even when the Special Marriage Act says man and woman, the entire notion of a man and a woman is not an ultimate based on genitals," said the bench, which also included Justices SK Kaul, SR Bhat, Hima Kohli, and PS Narasimha.

The court will resume hearing the pleas on Wednesday. 

Solicitor General Tushar Mehta, appearing on behalf of the Center said, "Biological man is defined as a man having biological genitalia. How will I be regarded under CrPC if I have male genitals but am otherwise a woman, as suggested? as a woman? Can I be called for 160 statement? There are numerous problems. If Parliament took action on this, it would be better. The Parliament has notable members. All political parties are represented in parliamentary committees."

The Supreme Court also directed lawyers to accelerate arguments on the Special Marriage Act, citing the difficulties and repercussions for the Hindu Marriage Act and personal laws of other religious groups if the Supreme Court upheld same-sex marriages as lawful.

"Then we may take personal laws out of the picture and all of you (lawyers) can speak us on the Special Marriage Act (a religion-neutral marriage legislation)," the court stated.

The Special Marriage Act permits civil marriage for couples who are unable to marry under their personal law.

With regards to transgender laws, SG Mehta stated that there are various rights such as the right to choose partners, the right to privacy, the right to choose sexual orientation, and any bigotry is legally subject to prosecution.

"But, judicial decisions cannot be used to bestow the socio-legal status of marriage. It cannot even be conducted by the legislature. The acceptance must come from the society as a whole," SG Mehta said, as quoted by PTI.

He explained that the issue arises when a Hindu wishes to retain the freedom to marry within the same sex while staying a Hindu.

Senior advocate Rakesh Dwivedi supported the Centre's objection to same-sex marriage legalisation, saying all states were important players in the matter and needed to be heard.

Earlier in the day, CJI Chandrachud denied the Solicitor General's request to hear the Centre first regarding the maintainability of the petitions.

SG Mehta told the Constitution Bench that the concern raised by the Centre about the petitions' maintainability should be heard first. He stated that he was making this request because the matter is within the purview of Parliament.

However, the CJI stated that the bench would first spend some time hearing from the petitioners to comprehend the major problems.

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