New Delhi, April 25 (). The Supreme Court on Tuesday questioned the counsel for petitioners seeking legalization of same-sex marriages as to what extent the court can go to recognize same-sex marriages as only Parliament has the power to legislate. It is not an easy task to legalize these marriages without touching the subject of marriage, divorce, inheritance etc. and personal laws.
Chief Justice D.Y. A five-judge bench headed by Chandrachud and comprising Justice S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, said Parliament has legislative powers on the canvas to address these petitions and Entry 5 of the Concurrent List, which specifically covers marriage and divorce, but the question remains as to which interventions in which this Court can interfere.
The bench said that even in the context of privacy in the Puttaswamy or Vishaka case, the framework laid down by the court has to be framed by the legislature.
The Chief Justice told senior advocate Maneka Guruswamy, representing some of the petitioners: These rights courts have considered…the loopholes have to be removed by the legislature. There are certainly such cases, the Vishaka case being a classical example, in which the court laid down a framework and then the legislature intervened and made a law, especially for the safety of women at the workplace.
But how far can the court go, as all your arguments have some bearing on how we understand the implications of our decision, as you seek to introduce a Special Marriage Act (SMA) reference on issues that are personal matters? related to laws. There is no doubt about the fact that adoption, succession.. these are all matters that are governed by Personal Law today, you also have the Hindu Adoption and Maintenance Act.
Maneka Guruswamy argued that the government cannot say that it is a matter to be left to Parliament and that when fundamental rights of a community are violated, they have a right to approach the constitutional court under Article 32 of the Constitution.
The bench asked: When you are putting an affirmative onus on the law makers, is it possible to prejudge the making of the law?
The counsel argued that the petitioners do not seek any special treatment but a practical interpretation of the Special Marriage Act to recognize their relationship, the bench said that the Special Marriage Act and personal law are intertwined and Any changes to the SMA will also have some impact on personal law.
The bench said, provident fund, pension… it really doesn’t stop here, the most important social security provided to husband and wife inter se… and so on… If we declare to use it, we substitute a substitute person for the male or female as a spouse.
The bench further said, “Suppose, when two Hindu women have married or two Hindu men have married and one of them has died.. The Hindu Succession Act says, when a Hindu man dies intestate If it happens, then whose property will it be? There is a clear difference between what a woman will get and what a man will get. When a female dies intestate there is a separate line of succession.
The bench said that if this is read into the SMA, then other personal laws will also have to be changed and there is no escape, and also pointed out that an exception was made to the SMA, being neutral to religion.
Stating that the nexus between SMA and personal law cannot be denied, the bench said, but section 21(a) of SMA indicates that all other parts of marriage are governed by personal law.
The hearing in this matter will continue on Wednesday as well.
SGK
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