On Thursday, April 27, the arguments in the matter related to same-sex marriage continued in the Supreme Court. During the hearing, Solicitor General (SG) Tushar Mehta argued against the petitioners’ claim to have the right to choose their sexual orientation.
Supreme Court Chief Justice DY Chandrachud and SG Tushar Mehta argue during the #SameSexMarriage case#SupremeCourtofIndia #SupremeCourt pic.twitter.com/M2DrMKsdaK
— Bar & Bench (@barandbench) April 27, 2023
Giving a hypothetical situation, SG Mehta questioned what would happen if, five years down the line, someone approached the court and challenged provisions prohibiting incest. SG Mehta, who is representing the central government in the case, said if unbridled personal autonomy is permitted in terms of sexual orientation, someone may use it to challenge the provisions prohibiting incest in the future.
SG Mehta said that hypothetically, someone may get attracted to a family member and claim autonomy in engaging in such relationships in private. He argued that if sexual orientation is considered a valid reason for autonomy, prohibition on incest might be challenged.
SG: please visualise a situation 5 years down the line.. i am attracted to someone in the prohibited relationship… incest is not uncommon across the world and it is prohibited.. someone is attracted to the sister.. and claim autonomy and is doing something in private domain……
— Bar & Bench (@barandbench) April 27, 2023
He said, “Please visualise a situation five years down the line. I am attracted to someone in the prohibited (degree of) relationship. Incest is not uncommon across the world, and it is prohibited. Someone is attracted to their sister, claims autonomy, and does something in the private domain. Now cannot this (provisions against incest) be challenged saying, ‘How can this be prohibited’?”
Replying to SG Mehta, CJI clarified that petitioners have argued that sexual orientation is not “a matter of choice” but an “innate characteristic”. CJI called the scenario presented by SG “far-fetched”. He added that sexual orientation could not be exercised in all aspects of the marriage. Furthermore, “It cannot be argued that sexual orientation is so strong that incest be allowed,” CJI added.
SG further talked about full-blood and half-blood relations. He said two persons are related by full blood when they are descendants from a common ancestor by the same wife and half blood when common ancestor but have different wives. Such provisions cannot happen in the case of homosexual couples. “Merely making man and woman as persons will completely make this provision redundant,” he said.
SG: now please see definition of full blood and half blood.. petitioners do not represent everyone in this class.. two persons are related by full blood when they are descendants from a common ancestor by the same wife and half blood when common ancestor but different wives..…
— Bar & Bench (@barandbench) April 27, 2023
Furthermore, SG questioned, in the case of homosexual couples, who will be deemed as a wife and who will become a husband in case the couple gets a divorce. He said, “We cannot just say decide the issue and leave individual cases for future adjudication. Issues will arise all across the country. Who will be the wife in a gay marriage and who will be the wife in a lesbian marriage where rights are granted to her? For maintenance, when the wife can establish she has no means to maintain herself, then the husband has to provide maintenance pendente lite. In gay marriage who will be the wife.” Listening to his arguments, the bench discussed but before muting the mic, Justice Narasimha was heard saying “That will be an impossible thing to do”.
SG: We cannot just say decide the issue and leave individual cases for future adjudication.. issues will arise all across the country.. who will be the wife in a gay marriage.. and who will be the wife in a lesbian marriage where rights are granted to her.. like maintenance when…
— Bar & Bench (@barandbench) April 27, 2023
The next date of hearing in the same-sex marriage has been set for May 3, 2023.
