Five-judge Constitution Bench of the Supreme Court will decide on pleas seeking recognition of same-sex marriage. The five-judge bench on April 18 will frame the issues of law that will define the scope of arguments.
Supreme Court bench led by Chief Justice of India DY Chandrachud said the issue was of “seminal importance” before referring it to a larger bench. The bench further noted that the arguments put forward by those seeking marriage equality will include “broader” constitutional entitlements around the right to life, and dignity.
The apex court noted that suggestions made also involved the interplay between constitutional rights and special legislative enactments such as the Special Marriage Act, and the Foreign Marriage Act. The court observed that transgenders have also sought the right to marry.
Same-sex couples in live-in relationships incomparable to Indian family unit
Solicitor General Tushar Mehta argued that the top court in its verdicts has upheld one’s right to love and express. No one is interfering with that right... but courts have said that it should not be meant to mean that it includes the right to marry and the court was careful in doing so, he added.
Mehta further said issues of marriage equality are a legislative function. Parliament will have to decide on adoption issues that arise from this; psychology of a child who has not been reared by a mother-father; and if such unions are in view with our ethos..., he argued.
In its reply filed on March 12, the Centre opposed pleas seeking marriage equality arguing that same-sex couples in a live-in relationship cannot be compared to an Indian family unit comprising a biological man, a biological woman and their offspring.
Marriage laws in India stem from personal laws and as such seeking marriage equality is not simple, the Centre said. Among Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between man and woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman.
Thus, recognition of same-sex marriage has more ramifications than simple legal recognition, the Centre said in its reply. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender, it added.
The Centre argued that in major parts of the country, it is regarded as a sacrament, a holy union, and a “sanskar” based on age-old customs, rituals, practices, cultural ethos and societal values.
Supreme Court in its 2018 Navtej Singh Johar verdict merely decriminalised consensual sex between same sexes and has by no means legitimised it. it has by no means been legitimised. “This, and no more than this, is what has been held in that case,” the Centre held.