Granting legal recognition to same-sex marriages falls within domain of legislature: Supreme Court

The Supreme Court on Thursday continued hearing on the batch of pleas seeking legalisation of same-sex marriages. It said that granting of legal recognition to same-sex marriages falls within the domain of the legislature, but also added that its objective in hearing the case is to ensure that means are devised to grant same-sex couples social and other benefits and legal rights within the label of a marriage.

"Once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationship.. and once you say that right to cohabit a fundamental right, then it is the obligation of the state that all social impact of the cohabitation has a legal recognition.. we are not going into marriage at all," Chief Justice of India, D Y Chandrachud said.

Appearing for the Centre, Solicitor General of India, Tushar Mehta told the Bench headed by Chief Justice of India, D Y Chandrachud that it was dealing with a complex subject which has a profound social impact.

He also said that the argument of the right to choice and sexual orientation raised by the petitioners seeking legal recognition for marriages between non-binary, non-heterosexual, or transgender persons may tomorrow be raised to defend incestous relationships.

On the demand to read the husband and wife as spouse in Special Marriage Act, Mehta asked who will be the father or mother of adopted chidden in non-heterosexual unions.

"If your lordships were to read "person" in place of husband or wife, one person will have right to claim maintenance from another. Meaning, in case of heterosexual marriages - husband can claim from wife," Mehta said.

"For passports etc this issue will arise. Succession act provides for widow, widower, husband, wife, father, mother etc," Mehta contended.

"Then there is a problem. The problem is- can your lordships read a statute which gives one additional ground of divorce to one class to the detrimental of heterosexuals for whom the Special Marriage Act is enacted," the Solicitor General asked.

Further Mehta asked the court to visualise a situation when a person is attracted those persons who are mentioned in prohibited relationships.

"Incest not uncommon in the world and world over it is prohibited...Suppose a person is attracted to his sister, can they say we are consenting adults, we're entering into activities privately and we claim our right of autonomy, choice. Based on that very argument can someone not challenge this definition (of prohibited degrees)?" Mehta said according to a report in Live Law.

The CJI however called the situation far-fetched.

"Sexual orientation or your autonomy as an individual can never be exercised in all aspects of marriage including the entry into marriage, the prohibited relationships, the grounds on which marriage can be dissolved...these are all subject to regulation by law. So these are very far-fetched for anybody to even argue before us that orientation is so absolute that I can therefore commit an act of incest. No court will ever countenance this," CJI Chandrachud said.