During the hearing on the recognition of same-sex marriage, the Chief Justice of India, DY Chandrachud (CJI), pondered on the current gender spectrums, asserting that there is no absolute concept of a man or a woman and the question of gender is not determined by one’s genitals.
“There is no absolute concept of a man or an absolute concept of a woman at all,” CJI Chandrachud noted.
CJI DY Chandrachud: 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.#SameSexMarriage #SupremeCourt #LGBTQIA
— Live Law (@LiveLawIndia) April 18, 2023
“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,” he further added.
The observations came at a time when the Supreme Court is considering a set of petitions that are based on constitutional principles and seek to establish the recognition of same-sex marriage. While hearing these petitions, the Chief Justice of India engaged in a discussion with the Solicitor General of India, Tushar Mehta, about the current scope of the institution of marriage in India.
During the hearing, the Constitution bench, which included Justice SK Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha, indicated that the Special Marriages Act would be examined at a later time. In response, the Solicitor General pointed out that, at present, the idea of marriage was limited to a union between a biological male and a biological female. However, the Chief Justice of India countered by stating that the notion of a man was not an absolute one and was far more intricate than just the physical characteristics of one’s genitalia.
At the outset of the hearing, the court announced that it would listen to the petitioner(s) to gain an understanding of the basic claims that were to be presented. This decision was made after the Solicitor General pointed out that the Centre’s initial objection, regarding the issue falling under the purview of the legislature, needed to be addressed first.
“In that case, the government will have to decide whether it will participate in the hearing,” he added.
Subsequently, a light-hearted exchange took place, and currently, the hearing is ongoing, with Senior Advocate Mukul Rohatgi presenting the lead arguments in the case.
In November of last year, the Supreme Court issued a notice in response to a petition filed by a homosexual couple seeking legal recognition of their same-sex marriage under the Special Marriage Act of 1954.
During the hearing, Senior Advocate Mukul Rohatgi, representing the petitioner-couple, had stated to a bench consisting of Chief Justice Chandrachud and Justice Hima Kohli that the matter was a continuation of the judgment passed in the case of Navtej Singh Johar.
The current petition highlighted the lack of a legal framework that permits individuals belonging to the LGBTQ+ community to marry a partner of their choice.
The petition filed to seek recognition of same-sex marriage contended that the Special Marriage Act was unconstitutional as it discriminated against same-sex couples by denying them legal rights and social recognition that are enjoyed by opposite-sex couples in a marital union. The petitioners argued that this discrimination violated the fundamental principles enshrined in the Indian Constitution.
