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Marriage Equality: Highlights of What Was Said at the Supreme Court Today

'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 CJI said today.

New Delhi: The Supreme Court today, April 18, began hearing several petitions seeking the legal recognition of marriages between LGBTQIA couples.

Two legal websites, LiveLaw and Bar and Bench, have reported in detail on day one of the hearing, which saw the bench discuss gender, biological sex, and the autonomy of individuals.

At the very beginning, Solicitor General Tushar Mehta noted that the government would like to take a call on whether to attend the hearing or not. This was after a back-and-forth between Chief Justice of India D.Y. Chandrachud and SG Mehta on whether the petitioners should be heard first considering the latter had challenged the maintainability of the case. The SG was first rapped by the CJI, who said that “he will not allow anyone to dictate how proceedings will happen in this court.”

Then, when the SG spoke on possibly not attending the hearing, Justice S.K. Kaul said, “It does not look nice that the government says it will see whether they will participate in the hearing or not, it is a very important issue.”

The bench also has Justice Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha.

Below are a few more noteworthy quotes from the hearing.

On ‘biological gender’

SG Mehta said, “My submission is that even Special Marriage Act, the legislative intent throughout has been relationship between a biological male and a biological female.”

To this, CJI Chandrachud noted that “the very notion of a biological man is absolute which is inherent.”

SG Mehta responded that there “is no notion,” to which the CJI said, “There is no absolute concept of a man or an absolute concept of a woman at all.”

He then continued: “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.”

SG Mehta then said, “Biological man means man with biological genitals.”

He then added, “I didn’t want to use that phrase.”

He then pressed for the issue to be taken up by the parliament, claiming that such a notion challenged other laws:

“If the notion is treated to be a guiding factor to decide a man or a woman, I’ll show several acts which your lordships would unintentionally make non-workable. If I have genitals of a man but otherwise am a woman, as being suggested, how will I be treated under CrPC? As a woman? Can I be called for 160 statement? There are several issues. This would be better if gone into by the parliament.”

On ‘++’

Arguing for one of the petitioners, Dr Abhishek Manu Singhvi said that the demand was not just for “same sex person marriage” but for the legal recognition of the marriage between “two consenting adults along bodily gender and sex spectrum”.

“There is a whole range of combination of persons with special biological features. It’s not only man and woman. One category is “sex” and the second category is “gender”. So a male body can be imbued by female psychological instincts and vice versa. There is LGBTQIA++. This “++” has a whole spectrum of hues and colours. Now if your lordships were to hold same person marriage, your lordships should not mean to limit it to same sex,” he said.

On ‘who will get maintenance’

Senior Advocate Kapil Sibal who was appearing for Jamiat-Ulema-i-Hind first said people are entitled to have relationships of “whatever kind,” and then registered reservations against same-sex marriage.

“…Assuming your lordships were to say it’s a valid marriage, suppose the marriage breaks down and they’ve adopted a child. What’s going to happen? Who will be the father? Under Criminal Procedural law, who is the woman? Who will get maintenance? These are serious societal consequences of that declaration. Either you take it as a hold, or don’t take it at all,” Sibal said.

Sibal pushed for adjacent reforms, and warned that in their absence, “You’ll be hurting the other community and that is dangerous. I’m all for it but not in this fashion.”

On ‘fundamental rights’

Senior Advocate Mukul Rohatgi, for one of the petitioners, argued that if Indian citizens are guaranteed fundamental rights, then a dignified life is a right. The court and state have a role in granting that, he said.

“If we have a fundamental right under Article 14, 15 and 21, then our full enjoyment of rights includes the right to a dignified life…Once the court and state recognise it then the stigma goes away. There is no need for parliament since I need not wait as there is a violation of fundamental right in daily life,” Rohatgi said.

On ‘citizenship’

In the course of his arguments, Rohatgi also said, “When you deny me the right of marriage, you deny me citizenship. If you deny me citizenship, you are saying you’re no good, you’re not equal to a citizen under preamble so you stay where you are.”

On the ‘business of life’

Senior Advocate Menaka Guruswamy noted that in the daily business of life, several rights are enjoyed by married couples which are not available to LGBTQIA+ people.

“I cannot buy an SCBA [Supreme Court Bar Association] insurance for my family even though I am an SCBA member…Rights are protected when you protect your relationships…day to day business of life is all these things and marriage gives a couple these bouquet of rights.”