No absolute concept of man or woman on the basis of genitals: SC

The Supreme Court on Tuesday said that there is no absolute concept of man or a woman and it cannot be only about the genitals, rather it is far more complex.

The top court, while going ahead with hearing a batch of petitions seeking legal recognition to same-sex marriage, also said it would not step into personal laws but restrict it to the Special Marriage Act to give it gender neutral interpretation by evolving civil union relationship.

Appearing for the Centre, Solicitor General Tushar Mehta submitted before a five-judge bench led by Chief Justice of India D Y Chandrachud that there is a legislative intent that a marriage can only happen between a biological man and a biological woman under the laws including in the Special Marriage Act.

Also Read | Will not go into personal laws, says SC while hearing pleas for legal validation for same-sex marriages

The CJI, however, said told Mehta orally, “You are making very important judgement. That very notion of a biological man is absolute and the notion of biological woman is also absolute”.

Mehta said a biological man is a biological man and it is not a notion.

“There is no absolute concept of a man or a woman at all, it cannot be the definition of what your genitals are, it is far more complex. Even when the Special Marriage Act says man and woman, the very notion of a man and notion of a woman is not an absolute, based on what genitals you have,” the bench said in oral observation.

At the outset, Mehta insisted that his preliminary objections against the maintainability of the petitions seeking same-sex marriage should be decided first.

He said all States should be issued notices before a decision is made by the top court.

Mehta submitted that the institution of marriage affects personal laws, Hindu Marriage Act is a codified personal law and Islam has their own personal law, and part of them is not codified.

However, the bench, also comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, said that it is not getting into personal laws.

Senior advocate Mukul Rohatgi, representing one of the petitioners seeking recognition of same-sex marriage, submitted that his clients seek a declaration that “we have a right to get married”.

A counsel said that right will be recognised by the state as under the Special Marriage Act and the marriage will be recognised by the State after declaration of this court.

Rohatgi contended that this is because even now we are stigmatised, and this is even after IPC Section 377 judgement in Navtej Singh Johar case.

The counsel said that the Special Marriage Act should mention 'spouse' instead of man and women.

Senior advocate Rakesh Dwivedi, appearing of one the parties in the matter opposing same-sex marriages, contended that marriage between man and woman is not a gift of law, but existed since time immemorial and marriages are necessary to perpetuate the human race itself.

He contended that even SMA has provisions reflective of personal laws and talks about different marriageable age for a man and a woman.

"How would one reconcile with these (who is man and who is woman)," he asked.

Senior advocate Kapil Sibal, appearing for some Muslims organisation, submitted that he is all for such relationships but is concerned about the serious societal consequences, which may follow after declaration.

"What happens if they adopt a child and later want to separate? Who gets maintenance," he asked.

Sibal stressed that if piecemeal arrangement is done then it will create more complications, which will hurt the community and in other countries where same-sex marriages were recognised, they overhauled the entire legal framework.

The petitioners questioned validity of certain provisions of the Hindu Marriage Act, the Foreign Marriage Act and the Special Marriage Act and other laws on the ground that they denied same sex couples the right to marry.