Same-Sex Marriage Case : Sexual Autonomy Argument May Be Used To Defend Incest, Argues Solicitor General; 'Far-Fetched', Responds CJI

Solicitor General Tushar Mehta today told the Supreme Court that arguments of 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.

"Visualise a situation, when a person is attracted to 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)? Why this restriction? Who are you to decide with whom?" SG submitted.

"That will be far-fetched," Chief Justice of India DY Chandrachud promptly remarked.

"We used to treat even thi as far-fetched," the SG responded.

CJI then said, "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."

Today is 6th day of hearing before the Constitution Bench comprising Chief Justice DY Chandrachud, and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha. Follow live updates here.

SG argued that people can also challenge polygamy on such grounds. "People may say my choice is polygamy...arguments the way they are read for marriage...can be made, whether accepted or not is one thing, for challenging incest and prohibited degrees," he argued.

At this juncture, Justice Bhat emphasized,

"But these are universal rules. As long as these were not codified, they were accepted. That was the law, the norm. If you're building up to this and saying there is a state interest in this relationship, one can understand. There are certain interests of the state which are legitimate."

SG Mehta then submitted that State can regulate certain relationships if the State feels that it is in legitimate interest to do so. "Therefore, marriage was not a regulated relationship. But state in its legislative policy wisdom decided that we will regulate and we can regulate only when we recognise...When your lordships were hearing Navtej, all these arguments were made. The central government said we leave it to the wisdom of the court so far as decriminalisation of Section 377 IPC is concerned but added that this has nothing to do with future right of marriage, inheritance, etc."

SG then moved on to contend that if such marriages were to be permitted, as many as 160 provisions would be affected, leading to ‘irreconcilable’ differences in the statutory framework of the country.

"See the definition of full blood and half blood (in relation to "degrees of prohibited relationship" in Special Marriage Act)...we can never reconcile this provision - it says that one man has given birth to a child with a biological woman. Marriage between lesbians- that can't be read because it wouldn't be full blood...Merely changing man and woman into person will make many provisions irreconcilable and this full blood will have inevitable impact of succession," SG Mehta argued.

Read all updates from the hearing here.

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022