The Supreme Court on Monday referred a batch of petitions seeking extension of the right to marry a person of one’s choice for the people belonging to the LGBTQIA+ community, for hearing by a five-Judge Constitution Bench on April 18.
The Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice P.S. Narasimha and Justice J.B. Pardiwala granted the petitioners three weeks time to file their response on the affidavit filed by the Central government.
The Apex Court observed that it would hear this matter as a constitutional case, invoking Article 145(3) of the Constitution.
Appearing for the Central government, Solicitor General Tushar Mehta said the Central government had opposed the legal recognition for same sex marriage on the grounds that the notion of marriage itself necessarily presupposed a union between two persons of the opposite sex.
Senior Advocate K.V. Vishwanathan, representing a transgender person, submitted that the Union’s affidavit has not dealt with the Transgender Persons Protection of Rights Act, adding that it was not an issue of mere statutory interpretation, but of recognition of rights flowing from the Constitution itself.
SG Mehta contended that the moment marriage between a same sex couple came to be a recognised institution, question will arise on adoption.
He said the issues fell within the legislative domain, adding that the will of the people, the psychology of a child not reared by a biological man and a biological woman, whether it can be raised in such a way, all these questions would have to be considered by the Parliament.
The CJI responded to the arguments by saying that a child adopted by a same-sex couple need not be necessarily a homosexual.
Senior Advocate Abhishek Manu Singhvi and Neeraj Kishan Kaul appeared for the petitioners.
During the hearing, the petitioners demanded live streaming of the proceedings, stating that the whole country should know about what was happening in this case.
Since the case has been referred to the Constitution Bench, it would be livestreamed. A petition related to live streaming of proceedings is pending before the Apex Court.
Earlier on Sunday, the Central government had filed an affidavit in the Apex Court, opposing the petitions that The batch of petitions challenged the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent that they did not recognise same-sex marriages.
It said the concept of same sex individuals living together as partners and indulging in a sexual relationship (which has been decriminalised by the Apex Court) could not be compared to the Indian family unit concept, which involved a biological man and a biological woman having children after their union or out of wedlock.
The latter unit required a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two, which were reared by both the husband and wife, it added.
The affidavit claimed that family issues were far beyond mere recognition and registration of marriage between persons belonging to the same gender.
It said the parties entering into a marriage created an institution having its own public significance as it was a social institution from which several rights and liabilities flowed.
The government said seeking declaration for solemnisation/registration of marriage would have more ramifications than simple legal recognition.
It further said that there could be no fundamental right for recognition of a particular form of social relationship.