Consider leaving questions raised in same-sex marriage pleas to Parliament: Centre to SC

Solicitor General Tushar Mehta, appearing for the Centr told that the apex court is dealing with a 'very complex subject'

The Centre on Wednesday contended before the Supreme Court that the issue of same sex marriage should be left for Parliament to decide in view of its complexity and social ramifications.

Initiating the arguments on behalf of the Union government during the fifth day of hearing on a batch of petitions filed by Supriyo alias Supriya Chakraborty, Solicitor General Tushar Mehta submitted before a five-judge bench led by Chief Justice D Y Chandrachud if the prayers are allowed, they will affect heterogeneous couples.

Maintaining that same sex marriage is very complex subject having profound social impact, he said adding, it is impossible for the court to conceive the situations that may arise on grant of legal sanctity to it.

"This court can't use different lenses for different categories of persons under the same law. It will be impossible for this court to reconcile the situations," he asserted.

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He contended in LGBTQIA+, it isn't explained what '+' means.

"There are at least 72 shades and categories of people in '+'. If this court were to give recognition to undefined categories and the judgement will affect 160 laws, how will we regulate all this," he asked.

He further said there are people who refused to identify under any gender.

"How will the law recognise them? As a man or a woman? There is a category that says gender will depend on mood swings. What would be their gender in a given situation, nobody knows," he submitted.

Mehta said the real question in the matter is who would take a call on what constitutes a valid marriage and between whom.

"There are several ramifications not only on society but unintended ramifications on other statutes as well," he pointed out.

A vast category of debates are required by society, states and civil society groups. The court can still save the rest of the exercise. As many as 160 legal provisions spanning different statutes can't be reconciled if the prayers are allowed, he claimed.

In his arguments, Mehta asked if the matter should not go first to Parliament or state legislatures.

"No one is sitting on a value judgment. But there is no stigma attached and Parliament has accepted their right to choice, autonomy in terms of sexual preference and privacy in form of intimate relationships," he said.

Read | Parliament empowered to legislate on marriage, how far can courts go: SC asks on same-sex marriage plea

Referring to the 2019 Transgenders Act, he said it conveyed the legislative policy by bringing within its fold not only transgenders but various other communities.

"The question is whether right to marry can be prayed for as a judicial order," he said.

"Right to marry can't mean compelling the State to create a new definition of marriage. Parliament can do it but it's not an absolute right. My appeal is to rather than taking this any further, this is a subject that should be left to the choice of Parliament," he submitted.

Mehta said the moment any right is recognised, it will have to be regulated.

"Even today, there is no absolute right to marry for heterogeneous couples. The law provides for minimum age, outlaws bigamy, prohibits marriages between certain relationships, even the separation is regulated," he said.

Mehta cautioned that several regulatory provisions followed legal recognition of a social relationship and only Parliament can conceive of several situations that may arise and regulate them. It's impossible for the court ro conceive of all possible scenarios.

"The request to this court is to rewrite an enactment to suit a situation. I'm not opposing it but asking who would do it. In my view, only Parliament can do it. And parliament consciously omitted this provision under Special Marriage Act," he added.

At one point, Mehta read from the US Supreme Court's controversial decision in 'Dobbs Vs X' which held that there is no constitutional right to abortion.

While the SG clarified that the purpose of citing this judgment was to only highlight that the courts should return the matters involving complex social issues to the legislature, the bench remarked that the judgment cannot be a good example otherwise.

“If you are relying on Dobbs to support that principle then we have gone far beyond Dobbs in India, and fortunately so. Dobbs represent a view of the US Supreme Court that a woman has no control over her own bodily integrity. This theory has been debunked long back in our country. Fortunately, we have gone far ahead of many western countries on several issues," the bench said.