Arguments about freedom of sexual orientation and autonomy may be raised in future to challenge incest prohibition, the Centre told the Supreme Court on Thursday.
The apex court is hearing a batch of pleas seeking legal recognition of same-sex marriages in India.
Solicitor General Tushar Mehta, appearing for the Centre, told the bench that incest is not uncommon in the world but prohibited all over.
“Kindly visualise a situation five-year down the line, based on this very thing… a person is attracted to those who are mentioned in the degrees of prohibited relationship,” he said.
Giving an example, he said, suppose a person says he is attracted to his sister and they are consenting adults and claim the right of autonomy, right of choice and right of doing something in the private domain.
“Based on that very argument, I am posing a question to myself, can someone not challenge this definition itself. Why this restriction? Who are you to decide with whom I have my sexual orientation,” he said.
Chief Justice of India DY Chandrachud observed, “You know Mr solicitor, sexual orientation or your autonomy as an individual can never be exercised in all aspects of marriage including the entry into marriage, the prohibited relationships, the grounds on which marriage can be dissolved. These are all subject to regulations by law. So, it may be very far-fetched for anybody to even argue before us that orientation is so absolute that I can therefore commit an act of incest. No court will ever countenance it.”
‘Who Will Be a Wife in a Man-man Marriage’: Centre to SC
The Centre requested the five-judge constitutional bench of the apex court, led by Chief Justice of India DY Chandrachud to consider leaving questions raised in the batch of at least 15 petitions seeking legal sanction for same-sex marriages to Parliament.
Appearing for Centre, Solicitor General Tushar Mehta today told the Supreme Court that it is dealing with a “very complex subject”, which has a “profound social impact”.
He said that arguments of right to choice and sexual orientation raised by the petitioners seeking legal recognition for marriages between non-binary, non-heterosexual, or transgender persons may tomorrow be raised to defend incestous relationships.
Raising concern about petitioners’ demand to read ‘husband and wife’ as ‘spouse’ in Special Marriage Act, Mehta said who will be the father or mother of adopted children in non-heterosexual unions.
“If your lordships were to read “person” in place of husband or wife, one person will have right to claim maintenance from another. Meaning, in case of heterosexual marriages – husband can claim from wife,” he said, according to a report by Hindustan Times.
He further argues that for domicile, it cannot be decided who will be the woman. “For passports etc this issue will arise. Succession act provides for widow, widower, husband, wife, father, mother etc,” the SG said.
“Let’s say marriage is permitted. They adopt and then someone dies. Father and mother is LGBTQ couple – who will be treated as father and who will be mother? This is a dilemma and cannot be foreseen by your lordships,” he added.
To this, the Chief Justice noted that reinterpreting provisions of SMA will have three major problems—It will involve substantial rewriting of legislation; it would amount to interference in matters of public policy; and it would also interfere in the realm of personal law and court cannot avoid the interplay between SMA and personal law.
Opposing petitioners’ argument that the court let both partners have both grounds for divorce in a same-sex marriage, Mehta said, “Like 1A applies only to a wife so who will be a wife in a man-man marriage etc – they said both would have both the grounds.”
“Then there is a problem. The problem is- can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted?” Mehta questioned.
Today is the sixth day of the same-sex marriage hearing before the Constitution Bench comprising Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.
SC Seeks Centre’s Response on Social Benefits to Same Sex Couples
The Supreme Court has asked the Centre to come back on May 3 with its response on social benefits that same sex couples could be granted even without legal recognition of their marital status.
The apex court said there must be recognition of some form and attendant benefits for homosexuals.
To which, the SG replied the government may consider tackling some of the issues they are facing without granting legal recognition.
(With PTI inputs)
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