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

The Supreme Court on Tuesday wondered how far it can go to allow the recognition of same-sex marriage as only the Parliament is empowered to legislate on the subject of marriage, divorce, inheritance, etc.

The top court pointed out that a reading down of the Special Marriage Act would have direct impact on personal law subjects such as adoption and succession.

Hearing a plea for the legal sanctity of same-sex marriage, a five-judge bench presided over by Chief Justice D Y Chandrachud told the petitioners counsel, "You cannot dispute that the Parliament has the powers to interfere with the canvas covered by these petitions. There is Entry 5 of the concurrent list. It, especially, covers marriage and divorce. So the question really is, which are the interstices left in which this court can interfere.The test really is, how far can the courts go?"

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Senior Advocate Maneka Guruswamy, representing the petitioners, contended that the government cannot say that this is a matter to be left to the Parliament.

When fundamental rights of a community are violated, they have the right to approach the constitutional court under Article 32 of the Constitution, she added.

On this, the court asked the counsel, "When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?"

The bench also pointed out even in cases like 'Vishakha Vs State of Rajasthan' in which guidelines were issued to fill the lacunae in law to deal with incidents of sexual harassment of women at workplaces, the framework set out by the court has to be fleshed out by the legislature.

The bench, also comprised Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha.

The court pointed out the most important social security provided to spouses between each other apart from spousal comfort was entitlement on the death of the spouse.

"If we substitute the word spouse for husband and wife and substitute person for man and woman….what happens when two Hindu women have married or there are two Hindu men who have married and one of them dies. As per the Hindu Succession Act, when Hindu male dies intestate, the property will devolve in particular manner. There is a clear distinction between what a woman will get and a man will get. When a woman dies intestate there is a different line of succession," the bench said.

Guruswamy, for her part, said, "Parliament cannot be the reason to exclude us from this guarantee under the Constitution."

The counsel also submitted that petitioners do not seek any special treatment but a mere workable interpretation of the Special Marriage Act to recognise their relationships.

The bench, for its part, also pointed out that the Special Marriage Act and personal laws are interconnected. "Hence, any changes in the SMA will have some impact on personal laws as well," it said.

"If we read into the Special Marriage Act, there will have to be changes in other personal laws as well. There is no shying away from this," the bench said.

The court also pointed out the Special Marriage Act carved out an exception, by being neutral to religion.

"But Section 21(A) of SMA, indicates that all other parts of marriage are governed by personal law. There is no denying the link between SMA and personal law," the bench added.

To this, the counsel said all this would only be consequential and it would follow.

The bench also sought to know if the petitioners represented the interests of entire community as there may be some persons who may want to preserve their present way of life.

"Those who wish to participate in this new definition of relationship can participate. Those who don't want to, need not," the counsel said.

During the hearing, the other counsel submitted every individual has a fundamental right to family and that recognition of such family should fall under Article 21 of the Constitution, irrespective of their gender identity or sexual orientation.