38.6c New Delhi, India, Friday, August 08, 2025
Top Stories Supreme Court
Political NEWS Legislative Corner Celebstreet International Videos
Subscribe Contact Us
close
Judiciary

'Parliament empowered to legislate on marriage, divorce, how far courts can go,' Supreme Court on same sex marriage plea

By LawStreet News Network      27 April, 2023 11:31 PM      0 Comments
'Parliament empowered to legislate on marriage, divorce, how far courts can go,' Supreme Court on same sex marriage plea

NEW DELHI: The Supreme Court on Tuesday asked those seeking legal recognition to same sex marriage as to how far the court can go to allow it, since only Parliament is empowered to legislate on marriage and divorce.

The court also said reading down of the Special Marriage Act would have direct bearing on personal laws and would affect issues of adoption and succession.

Taking up a batch of petitions, a five-judge bench presided over by Chief Justice D Y Chandrachud told petitioners, "You cannot dispute that Parliament has the powers to interfere with the canvas covered by these petitions. There is Entry 5 of the concurrent list. It specially covers marriage and divorce. So the question really is which are the interstices left in which this court can interfere.The test really is, how far can the courts go?"

The court was responding to a contention by senior Advocate Maneka Guruswamy, on behalf of the petitioners that government cannot say that this is a matter to be left to Parliament.

"When fundamental rights of a community are violated, they have the right approach the constitutional court under Article 32 of the Constitution," she said.

The court, however, asked her, "When you are casting a positive obligation on the lawmakers, is it possible to presuppose the creation of law? How do we weave out an obligation or a mandate?"

The bench also said even in cases like 'Vishakha Vs State of Rajasthan' in which guidelines were issued to fill the lacunae in law to deal with incidents of sexual harassment of women at workplaces, the framework set out by the court has to be fleshed out by the legislature.

The bench, also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, also pointed out the most important social security provided to spouses between each other, apart from spousal comfort was entitlement on the death of the spouse.

"If we substitute the word spouse for husband and wife and substitute person for man and woman.what happens when two Hindu women have married or there are two Hindu men who have married and one of them dies. As per the Hindu Succession Act, when Hindu male dies intestate, the property will devolve in particular manner. There is a clear distinction between what a woman will get and a man will get. When a woman dies intestate there is a different line of succession," the bench said.

Guruswamy maintained, "Parliament cannot be the reason to exclude us from this guarantee under the Constitution."

The counsel also submitted that petitioners do not seek any special treatment but a mere workable interpretation of the Special Marriage Act to recognise their relationships.

The bench again pointed out that the Special Marriage Act and personal laws are interconnected. "Hence, any changes in the SMA will have some impact on personal laws as well," it said.

"If we read into the Special Marriage Act, there will have to be changes in other personal laws as well. There is no shying away from this," the bench said. 



Share this article:

User Avatar
About:


Leave a feedback about this
TRENDING NEWS

in-house-procedure-had-legal-sanctity-sc-dismisses-justice-varmas-plea-against-recommendation-for-removal
Trending Judiciary
'In-house procedure had legal sanctity,' SC dismisses Justice Varma's plea against recommendation for removal

SC upholds in-house probe into Justice Varma, dismisses his plea against removal; says process is legally valid and judge’s conduct lacked credibility.

07 August, 2025 12:05 PM
sole-testimony-of-victim-even-without-medical-evidence-sufficient-to-uphold-rape-conviction-sc
Trending Judiciary
Sole testimony of victim even without medical evidence sufficient to uphold rape conviction: SC [Read Judgment]

SC: Victim’s sole testimony, even without medical evidence, sufficient to uphold rape conviction if found credible and consistent.

07 August, 2025 03:11 PM

TOP STORIES

bengaluru-court-convicts-ex-mp-prajwal-revanna-in-rape-case
Trending Judiciary
Bengaluru court convicts ex MP Prajwal Revanna in rape case

Bengaluru court convicts ex-MP Prajwal Revanna in rape case linked to explicit videos; one of four sexual abuse cases filed against him.

04 August, 2025 11:07 AM
sc-sets-aside-order-declaring-man-as-juvenile-on-basis-of-school-certificate
Trending Judiciary
SC sets aside order declaring man as juvenile on basis of school certificate [Read Judgment]

SC: School certificate from private school not valid proof of age, sets aside order declaring murder accused as juvenile.

04 August, 2025 11:24 AM
hp-may-vanish-in-thin-air-god-forbid-sc-on-ecological-imbalance-in-himachal-pradesh
Trending Judiciary
‘HP may vanish in thin air, God forbid', SC on ecological imbalance in Himachal Pradesh [Read Order]

SC warns HP may vanish due to ecological imbalance; seeks state’s action plan amid rising disasters, deforestation, and climate change threats.

04 August, 2025 11:31 AM
sc-grants-4-weeks-time-to-centre-to-frame-guidelines
Trending Judiciary
SC grants 4 weeks time to Centre to frame guidelines to ensure pedestrians right to use footpath

SC gives Centre 4 weeks to frame guidelines ensuring pedestrians’ right to obstruction-free, accessible footpaths under Article 21.

04 August, 2025 11:41 AM

ADVERTISEMENT


Join Group

Signup for Our Newsletter

Get Exclusive access to members only content by email