The Centre on Thursday told the Supreme Court, which is hearing arguments on a clutch of pleas seeking legal sanction for same sex marriages, that arguments about freedom of sexual orientation and autonomy may be raised in future to challenge incest prohibition.

Solicitor General Tushar Mehta, appearing for the Centre, told the bench that incest is not uncommon in the world but prohibited all over.

“It will be far-fetched,” the five-judge constitution bench headed by Chief Justice D Y Chandrachud observed, adding sexual orientation or autonomy as an individual can never be exercised in all aspects of marriage including entry into wedlock and prohibited relationships, the grounds on which a marriage can be dissolved.

All these, the CJI said, are subject to regulations by law.

“The arguments.... and I am saying this with a sense of responsibility, can be made, whether accepted or not is one thing, for challenging incest prohibition as well,” Mehta told the bench, which also comprised justices S K Kaul, S R Bhat, Hima Kohli and P S Narasimha.

He referred to section 2(b) of the Special Marriage Act, 1954 which talks about degrees of prohibited relationship.

“The proposition which I must mention here at this stage itself (is) would your lordships, I am posing a question to myself, read a particular enactment in such a fashion that it applies in a particular manner to one class, that is heterosexuals, and in a different manner to different class namely same-sex.... that exercise may not be a permissive interpretative exercise,” he said.

Mehta said a statute cannot be read to mean ‘A’ for some class and ‘B’ for some class.

“Kindly visualise a situation five-year down the line, based on this very thing... a person is attracted to those who are mentioned in the degrees of prohibited relationship. Incest is not uncommon in the world and world over incest is prohibited....,” he said.

Giving an example, he said, suppose a person says he is attracted to his sister and they are consenting adults and claim the right of autonomy, right of choice and right of doing something in the private domain.

“Based on that very argument, I am posing a question to myself, can someone not challenge this definition itself. Why this restriction? Who are you to decide with whom I have my sexual orientation,” he said.

The CJI observed, “You know Mr solicitor, 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 regulations by law. So, it may be 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 it.” During the arguments, Mehta said he will show from the Special Marriage Act that it is perhaps not an option for the court to not look into the personal laws.

While hearing arguments on same-sex marriage on April 18, the apex court had made clear that it will not go into the personal laws governing marriages while deciding the pleas and asked the lawyers involved to argue on the Special Marriage Act.

On Thursday, Mehta referred to the explanation given under section 2(b) of the 1954 law which says two persons are said to be related to each other by full blood when they are descended from a common ancestor by the same wife and by half blood when they are descended from a common ancestor but by different wives.

Hypothetically referring to marriage between lesbians if the court were to grant legal sanction to same-sex union, he said this provision will be “redundant” because she can’t have full blood.

“Even if there is a child from artificial insemination, it would not be a full blood child. So, merely changing man and woman into persons will make many provisions not reconcilable at all. This full blood etc. will have an inevitable impact on the succession. I will show,” he argued.

Mehta referred to several provisions of the Special Marriage Act as well as the Hindu Marriage Act, 1955.

During the hearing, the CJI observed, “Mr solicitor, therefore, looking at the conspectus of these provisions, perhaps we can conceptualize your arguments by saying that reading the provisions of the Special Marriage Act and, if the court were to make an effort as the petitioners say to reinterpret the provisions, there would be three major problems.” “One, it will involve substantial rewriting of the legislation. Two, it may also involve the court ignoring some provisions which have been introduced as a matter of public policy, as we saw the additional grounds in the case of a woman for divorce. Third, it would involve reinterpretation of personal laws because there are segments of the Special Marriage Act which specifically contain a reference to the personal law.

"So the third category... there is no manner in which the court can avoid the interface between the Special Marriage Act and personal law,” Justice Chandrachud said.

Mehta said he would add the fourth that the court would not read any statute so as to make it applicable to one class differently and another class differently.

He said it may not be far-fetched that later a heterosexual couple can come and say that now apply the provision which the court has read for the LGBTQ (lesbian, gay, bisexual, transgender, queer) because they may be heterosexuals but internally they feel differently.

“It opens room for several complications which your lordships cannot conceive right now,” he said.

The arguments remained inconclusive and will resume on May 3.

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