MC Exclusive: Asking the SC to extend the Special Marriage Act to same-sex couples is a step too far: Harish Salve

Harish Salve on same sex marriage

Commenting on the ongoing Constitution Bench hearings seeking legal sanction of same-sex marriages, former Solicitor General and King’s Counsel Harish Salve said that asking the Supreme Court to extend the provisions of the Special Marriage Act, 1954, to include same-sex couples may be a step too far.

Speaking exclusively with Moneycontrol, Salve said, “The courts have a role to play (in protecting the rights of same-sex couples). But should the courts be rewriting the law?” Salve noted that in England when live-in relationships started increasing, and there was no law that specifically applied to such couples, the English courts found a solution within the existing laws, without reinterpreting any laws.

Salve said: “The Supreme Court has already decriminalised offences relating to same-sex relationships and has recognised that a person's orientation is an integral part of his right to privacy and his right to live his life the way he wants.

``Marital laws are about society accepting a particular relationship, setting down the boundaries of the relationship, the circumstances under which such a relationship can end, and its financial consequences."

Elaborating on this, Salve said marriage and divorce laws are integrally connected with the society, and therefore a middle path needs to be found for such legislations.

He cited the example of the civil partnership law in the United Kingdom. Registering a civil partnership gives a relationship legal recognition, and is not confined to same-sex couples alone.

According to Salve, for the above reasons, extending the Special Marriage Act, which is clearly meant for binary relationships, to same-sex couples may be a step too far. “But parliament has to find a resolution to this, and I'm sure parliament will do so,” Salve added.

The Supreme Court started hearing petitions seeking legal recognition for same-sex marriages on April 18, 2022, and is expected to conclude the hearings on May 11.

The petitioners have argued that the provisions of the SMA should be reinterpreted to mean marriage between 'persons' as opposed to meaning marriage between a man and a woman.

The government has contended that legalising same-sex marriages is not in the court’s domain and it is for the parliament to legislate on it after consulting with the states.