iNDICA NEWS BUREAU–
A five-judge Constitution Bench headed by Chief Justice of India D.Y. Chandrachud on Tuesday refused to grant any legal sanction to same-sex marriage. The Constitution Bench, also comprising Justices S.K. Kaul, S.R. Bhat, Hima Kohli, and P.S. Narasimha, held that queer couples do not have an unqualified right to marriage.
It asked the Union government to set up a high-powered committee to be chaired by the Cabinet Secretary to take steps to decide the rights and social entitlements of same-sex couples.
The Supreme Court said that courts cannot make law and can only interpret it. It refused to accept the petitioners’ contention that in the Special Marriage Act (SMA), wherever ‘husband’ and ‘wife’ is used, it can be made gender neutral by using ‘spouse’, and ‘man’ and ‘woman’ should be substituted by ‘person’.
The Constitution Bench was hearing a batch of petitions that challenged certain provisions of the Hindu Marriage Act, Foreign Marriage Act, Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry, or alternatively, to read these provisions broadly so as to include same-sex marriage.
However, the Supreme Court said that a marriage entered into by a transgender person is in the nature of a heterosexual relationship and must be recognized by the law.
“Since a transgender person can be in a heterosexual relationship like a cis-male or cis-female, a union between a transwoman and a transman, or a transwoman and a cisman, or a transman and a ciswoman can be registered under Marriage laws,” said a constitution Bench headed by CJI D.Y. Chandrachud.
It said that a transgender man has the right to marry a cisgender woman under the laws governing marriage in the country, including personal laws.
“Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also marry,” it added.
The Supreme Court said that intersex persons who identify as a man or a woman and seek to enter into a heterosexual marriage would also have a right to marry.
During the hearing, the Centre government asserted that marriage must only be between ‘biological’ men and ‘biological’ women. However, the written submissions of the Attorney General, the highest officer of the Centre, stated that: “The issues relating to transgender persons arising out of The Transgender Persons (Protection of Rights) Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act.”
In 2019, Madras High Court had ordered registration of marriage between a man and a woman – who happened to be transgender. The High Court had said that the term “bride” in the Hindu Marriage Act cannot have a static and immutable meaning and that statutes must be interpreted in light of the legal system in its present form.
India’s Supreme Court refuses legal sanction to same-sex marriage
