Chief Justice of India D.Y. Chandrachud on Tuesday observed that the very notion of a biological man or biological woman being absolute was incorrect (or inherent).
The CJI made these observations while hearing the petitions seeking legal recognition of same-sex marriages.
The Constitution Bench of the Supreme Court, comprising CJI, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha, heard the petitions today.
Appearing for the Central government, Solicitor General Tushar Mehta said it was not a question of notion as a biological man meant a biological man.
The CJI responded that there was no absolute concept of a man or a woman at all, adding that this was not an argument.
He further said that it was not a question of genitals.
The CJI noted that the very notion of a man or a woman, as per the Special Marriage Act was not absolutely based on the genitals.
The SG said that he did not want to use the expression, but a biological man meant the genitals he had. .
Justice Kaul intervened by saying that it was a point of view and asked them to stop the discussion.
The SG argued that for men, irrespective of other attributes than the genitals, there were separate age limits prescribed. He asked the Supreme Court to examine whether the right to marry was outside the scope of law or a fundamental right.
He said that if a notion was treated to be a guiding factor to decide man, then there were several Acts, which would unintentionally become non-workable.
The SG asked as to how a person would be treated under the Criminal Procedure Code, when he was having the genitals of a man, but was otherwise being treated as a female. As a woman, can he be called under Section 160 CrPC after a particular hour?
The SG further said that it may be only a notion, but there were several issues which need to be discussed. It would be better if these issues went through the Parliament, he added.