By Kanu Sarda:

The Supreme Court on Tuesday said that there was no “absolute concept of a man or an absolute concept of a woman” and that gender was “far more complex” than one’s genitals.

A Constitution Bench headed by Chief Justice of India DY Chandrachud was responding to the Centre’s argument that laws, including the Special Marriage Act, recognised only heterosexual marriages between a “biological man and a biological woman”.

The Supreme Court on Tuesday began hearing arguments on a batch of pleas seeking legal validation of same-sex marriages, an issue that has wide societal ramifications and has sharply divided opinion. The hearing for the day has ended and the Constitution bench will re-assemble on Wednesday.

The Centre, represented by Solicitor General Tushar Mehta, told the five-judge bench headed by Chief Justice of India (CJI) DY Chandrachud, that maintainability should be decided first.

The court said it would first like to understand the issues involved and asked the Solicitor General to let petitioners open their arguments.

Mehta told the bench that he was raising this request since the issue falls within the domain of Parliament.

Parliament is the only constitutionally permissible forum to decide on the creation of a new social relationship, asserted the Solicitor General. “We are still questioning whether it’s for the courts to decide on their own,” he said.

On this, the Chief Justice said the court can’t be told how to make a decision and that it wants to hear the petitioners’ side. He said the arguments must steer clear of personal marriage laws and focus only on the Special Marriage Act. The court will continue hearing the petitioners’ arguments till Thursday.

Responding to CJI, Solicitor General Tushar Mehta said “Then, let the government decide how far it will like to participate in these proceedings.”

The Solicitor General further pointed out that, at present, the idea of marriage was limited to a union between a biological male and a biological female.

At this, the Chief Justice of India said that the notion of a man was not an absolute one and was far more intricate than just the physical characteristics of one’s genitalia.

The hearing remained inconclusive and will continue tomorrow as well.

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