Solicitor-General Mehta’s propositions against the petition on day six of the hearing states it is not possible to avoid personal laws, changing all of which with gender-neutral terms would prove to be complicated.
Solicitor-General Tushar Mehta, arguing against the inclusion of same-sex marriage under the Special Marriage Act (SMA) said that it would create linguistic difficulties for the existing laws.
Justice Bhatt’s response to this was that the legal language must be updated. Justice Kohli replied, “Time to update ourselves.”
Supriyo and Abhay Dang are the main petitioners for the recognition of the same-sex marriage in the Supreme Court which has entered its sixth day of hearing.
Solicitor-General Tushar Mehta argued that allowing same-sex marriages under the Special Marriage Act with a different interpretation, as was proposed by the Court, is unacceptable as a statute cannot be interpreted differently for different classes.
Mehta said that all terms cannot be made gender-neutral if same-sex marriage was legalized. In a same-sex marriage, he questioned the definition of man, woman, husband, wife, mother and father, spinster, bachelor; while also questioning circumstances such as on death, who would be the widowed and who the widower, who will be the father and who the mother for adopted children. He further questioned how the existing laws will be interpreted in view of these lack of definitions.
“Merely changing ‘man’ and ‘woman’ into ‘persons’ will make many provisions [of the law] not reconcilable at all,” said Mehta.
Mehta states that countries where same-sex marriage has been legalised, other allied laws were also changed to accommodate it. “Maybe if the parliament considers appropriate, the parliament may in its wisdom provide for a comprehensive legislature. As I pointed out yesterday, wherever other legislative bodies have done it they have suitably amended other allied laws as well.”
His argument was that this if related laws were not changed, it would allow non-heterosexual couples enjoy benefits that are not enjoyed by heterosexual relationships. Regulated social relationships and personal laws
Mehta further challenged the proposition that the state does not have the right to regulate socio-personal relationships, to which the Constitution-bench agreed. He said, “The state can regulate certain relationships if the state feels that it is in legitimate state interest to do so.”
He said that earlier, marriage was not a regulated social relationship, but “the state in its legislative policy wisdom decided that we will regulate; and we can regulate only if we recognize. Therefore, under the Hindu Marriage Act (HMA), or any marriage act, we recognized and we regulated.”
Chief Justice of India, D Y Chandrachud said that the parents indeed do not have absolute control over their children. “You have to send your children to schools; you have to get your children vaccinated.” He agreed that there are several obligations citizens live under imposed by the state for the good of the state.
The court’s decision to not touch upon any personal acts was also challenged by Mehta who said, “The Hindu Marriage Act will apply…even to SMA.” He said that HMA and the SMA had prohibitions on who can marry whom, citing the example of the ‘sapindas’ and the ‘sagotras’ among whom marriage within lineage is prohibited.
However, Justice Bhat noted that these are Hindu customs which might not apply to other communities, and there might be customary exemptions to these as well.
The SC further cited an example where in a same-sex relationship, one partner is Muslim. Mehta said, in these situations, it would not be possible to not relate it to existing personal laws.
Mehta mentioned that the decriminalisation of homosexuality and the removal of Section 377 were not related to marriage. “I specifically added in my affidavit that this has nothing to do with future right of marriage, inheritance, etc.”
