The constitutional bench comprising of Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli began hearing arguments in regards to legalizing same sex marriages, on Tuesday 18th of April 2023.
It was submitted by Dr Singhvi, appearing on behalf of one of the petitioners that, when it comes to granting equality in marriage in India, it should not just be the same sex couples having the right to marry the person of their choice rather the right of marriage should be granted to “two consenting adults along bodily gender and sex spectrum”. In her argument she stated that the term LGBTQIA++ has ++ to put emphasis on the fact that there are various kinds of people and their orientation, one cannot limit the right to marriage only to same sex people instead it should be granted to two consenting adults irrespective of their sexuality.
On the other hand, Solicitor General of India SG Mehta appearing for the Central Government exhibited his disagreement regarding the arguments raised by Dr Singhvi, according to him gender of a person is the gender they were assigned with at their birth i.e., their biological gender. He further submitted that even the special marriage act the sole intention throughout has been relationship between a biological man and a biological woman.
SG Mehta was interrupted here by CJI Chandrachud who remarked that “the very notion of a biological man is absolute which is inherent”
to this the solicitor general said while disagreeing that “there is no notion a biological man is a biological man.”
Responding to the solicitor general, the CJI DY Chandrachud stated that there exists no absolute concept of a man or an absolute concept of a woman, it is way more convoluted and twisted than just revolving around what one’s genitals are. “The very notion of a man and a woman is not absolute based on genitals”
Chief Justice of India stated that
“There is no absolute concept of a man or an absolute concept of a woman at all. 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 refuted the CJI’s remark, he raised his concerns on how one will be treated under CrPC if they identify themselves as a woman but have genitals of a man, will they be called for 160 statement or not. He suggested that this would be better if gone into by parliament.
Senior Advocate Kapil Sibal appearing for Jamiat- Ulama- I Hind on the similar note as SG Mehta further stated while showing support regarding equal rights for the queer committee that people are entitled to have a relationship with whosoever they want and this must be celebrated but it is to be noted that if same sex couples get married and adopt a child if there occurs a situation where they decide to separate and part ways, then who is going to be stated as the father and under CrPC who is the woman in the relationship who is going to get the maintenance, moreover he stated when such decisions are taken around the world, other legislatures reform the laws along with it and if this doesn’t happen it would mean to hurt other community.
Senior Advocate Mukul Rohatgi, referring to various judgements stated that both gender and biological attributes are definite features of sex. Sex is not limited to biological sex of male and female designated to them at their birth but is also meant to be inclusive of people who resonate to neither of the two.
The bench is to re assemble to continue with the hearing tomorrow.
NAME PRNAJL JHA, SEMESTER 2ND, COLLEGE AMITY LAW SCHOOL NOIDA
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