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On Same-Sex Marriage, Centre’s Incest Query, Snub From Court


New Delhi:

A green signal to same sex marriage in India may give people license challenge the bar on other socially unaccepted relationships including incest, the Centre argued today in the Supreme Court. Appearing for the Centre, Solicitor General Tushar Mehta presented a hypothetical situation to the court where a man might argue that he is attracted to his sister, claim his right of choice and challenge the taboo on incest.

“Kindly visualise this – from the very beginning I am attracted to those persons who are mentioned in the degree of prohibited relationships. Incest is not uncommon but it is prohibited worldwide,” Mr Mehta told the bench led by Justice DY Chandrachud.

“I am attracted to my sister… We are consenting adults entering into activities within privacy. And we claim our right of autonomy, right of choice… based on that, can someone not challenge that why this restriction?” he said.

Justice Chandrachud questioned where the degrees of these prohibited relationships come from and if they are from the Hindu law.ย  “Sagothra and Sapinda- that is now codified,” Mr Mehta responded.

The judges, however, said the situation posited by the Solicitor General is “far-fetched” and that there are certain “universal rules” where the state interest in personal relationships is legitimate.

The Centre also appeared to be under the impression that the petitioners seeking legalisation of gay marriage were arguing that sexual orientation is a matter of choice. But its representative was set right by Justice Chandrachud.

“They say sexual orientation is given to me. They say that I’m entitled to my autonomy by virtue of my sexual orientation. Sexual orientation is not a matter of choice but a matter of immutable features- that’s the argument,” Justice Chandrachud said.

To that Mr Mehta responded that there are two different schools of thoughts on this. “One says that sexual orientation is acquirable also. Another says it is inbuilt. Let’s not go into that,” he added.

The court today said granting legal recognition to same-sex marriages could be the “arena of the legislature”, but questioned what legal rights and recognition can be granted to people of same sex living together. The Centre has been asked to submit a report on this on the next date of hearing.

“Once you recognise there is a right to cohabit.. and it may be symptomatic of a sustained relationshipโ€ฆ 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 Chandrachud said.

The Centre had earlier questioned if the court can give legal sanction to same sex marriage, arguing that it is the domain of legislature.

Yesterday, law minister Kiren Rijiju said it is the people of the country who can decide on an important issue like the institution of marriage.

“It is a matter which concerns every citizen of India. It is the question of people’s will. The will of the people is reflected in Parliament or in the legislature or assemblies,” he said at the Republic TV conclave.



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