There Is No Absolute Concept Of A Man Or Woman At All: Chief Justice Chandrachud, Read Exchange With SG
A very interesting exchange took place in the ongoing hearing before the Constitution Bench which is considering whether to recognise same-sex marriage or not.
Solicitor General Tushar Mehta appearing for the Union of India submitted that considering the use of the word "person" in the Special Marriage Act, the legislative intent of the legislature throughout has been a relation between a biological male and a biological female.
Chief Justice DY Chandrachud then said, "There is a very important value judgement you are making that the very notion of the biological man is absolute or that the notion of the biological woman is also absolute, which is incorrect (or inherent)".
"Biological man means biological man. It is not a question of notion", Tushar Mehta responded.
"Yes. Of course, it is. There is no absolute concept of a man or an absolute concept of a woman at all, that is not an argument....", the Chief Justice said.
"My lord, biological man means man only. It means biological man", the SG responded.
"It is not a question of what your genitals are. It is far more.. that's the point", the CJI said. "So even when the special marriage act says man and woman, the very notion of a man or a notion of a woman is not absolute based on what genitals you have", the Chief Justice added.
"My lord, biological man means genitals you have. My lord, I didn't want to use that expression", the SG said.
"That is a point of view", Justice SK Kaul intervened and said to stop the discussion.
"Another thing. For men, irrespective of other attributes than the genitals, there are separate age limits prescribed", Metha submitted.
"Your lordship will have to examine whether the right to marry dehors the law is a fundamental right", Tushar Mehta submitted and added that "There are several Acts. If a notion is treated to be a guiding factor to decide man, then I will show several Acts, which your lordships would unintentionally make non-workable. I may have genitals of a man but I am otherwise a female, as is possibly suggested, then how would I be treated under the Criminal Procedure Code? As a woman, can I be called for 160 statement after a particular hour? I may say that this is only a notion. I may have biological genitals of a man, but now I am a woman. My lord, there are several issues which have to be gone into. Better they are gone into by the Parliament", Tushar Mehta submitted.
The Court has risen for lunch and will continue hearing post-lunch.
In the morning, the Constitution Bench had refused to accept the Center's plea to hear its preliminary objections to the maintainability of the petitions seeking recognition of same-sex marriage first, before hearing the cases on merit.