The Supreme Court on Monday said the matter of same-sex marriages in the country is of “seminal importance” and directed that it will be posted before a constitution bench.
A bench comprising CJI DY Chandrachud, Justice PS Narasimha and Justice JB Pardiwala was hearing a string of pleas seeking the legal validity of same-sex marriages in the country today.
“We will list this on April 18, this is a matter that is important enough and we will invoke Article 142(3) power. We will invoke Article 145(3) to hear this as a conditional case. We accordingly direct that the matter is posted before a constitution bench,” the CJI said.
The hearing comes after the Centre on Sunday filed an affidavit before the top court strongly opposing the legal recognition of same-sex marriages in India.
Senior advocate Abhishek Singhvi, appearing for petitioners, said, “One is a philosophical proposition – Right to love makes us human. It should be extended in equal terms. You can extend it only on equal terms only if your lordships read down the special marriage act and other acts. A general philosophical one is that this is what your lordships have called us as the right to live and the right to love. In light of Navtej Singh Johar’s ruling Right to marry cannot be withheld for the class of persons solely on the basis of sex, gender orientation & identity. Also, the same must be extended in equal terms & it can be extended only if your lordships read up or read down SMA the right to marry to all persons otherwise eligible.”
Solicitor General Mehta said, “So far as the right to choice is concerned that has been taken care of in Navtej Johar. Your Lordships in Navtej Johar clearly said that the union doesn’t mean the union of marriage. Marriage is not a contract in Hindu law and even in Islamic law where marriage is a contract. The same is allowed between a man and a woman.”
“Question will come on adoption. The Parliament will have to examine and see the will of the people, psychology of child has to be examined… whether it can be raised in such a way, Parliament will factor into the societal ethos,” he added.
To which the CJI said, “The adopted child of a lesbian or a gay couple might not be a gay or a lesbian.”
The Centre referred to the concept of Indian families in its submission to the apex court, saying heterosexual and same-sex relationships fall into a ‘distinctive’ class of relationships and argued that they cannot be treated the same.
It said western decisions sans any basis in Indian constitutional law jurisprudence cannot be imported in this context. It also asserted that granting recognition to human relations is a legislative function and can never be a subject of judicial adjudication.
“The notion of marriage necessarily and inevitably presupposes union between 2 persons of opposite sex. This definition is socially, culturally & legally ingrained into the very idea and the concept of marriage & ought not to be disturbed or diluted by judicial interpretation,” the Centre’s affidavit read.
According to the Centre, it was obvious that the legal recognition of the institution of marriage “was limited to a relationship between a man and a woman, represented as husband and wife.”
The government submitted in its affidavit that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.
The hearing comes after the apex court, on January 6, clubbed and transferred to itself all such petitions pending before different high courts, including the Delhi High Court.
On January 3, the apex court had said it would hear on January 6 the pleas seeking a transfer of petitions for recognition of same-sex marriages pending before the high courts to the top court.
On December 14 last year, the apex court had sought the Centre’s response to two pleas seeking a transfer of the petitions pending in the Delhi High Court for directions to recognise same-sex marriages to itself.
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