Calling it a “very seminal issue”, the Supreme Court of India (SC) on Monday referred the pleas seeking legal validation of same-sex marriages to a five-judge constitution bench for adjudication.
A three-member bench, headed by Chief Justice of India (CJI) DY Chandrachud, said that the submissions on the issue involve an interplay between constitutional rights on the one hand and special legislative enactments, including the Special Marriage Act, on the other.
The bench, also comprising justices PS Narasimha and JB Pardiwala, said that it was a matter which was important enough to be decided by a constitutional bench of five judges. The pleas will now be heard on April 18.
“Having due regard to the broader context of the petitions before this court, the inter-relationship between the statutory regime and constitutional rights, we are of the considered view that it would be appropriate if the issues raised are resolved by a constitution bench of five judges of this court,” the bench said, while terming it a “very seminal issue”.
It also referred to Article 145(3) of the Constitution. Article 145(3) of the Constitution says there should be at least five judges to hear cases that involve “a substantial question of law as to the interpretation” of the Constitution, or any reference under Article 143, which deals with the power of the President of India to consult the SC.
“We accordingly direct that the hearing of these petitions be placed before a constitution bench,” the apex court said.
Adoption of a child in same-sex marriage
The bench said one of the issues raised before it also relates to the rights of transgender couples to marry. While hearing the petitions, CJI Chandrachud said that it is not necessary that a child adopted by a homosexual couple will be a homosexual.
“The adopted child of a lesbian couple or of a gay couple does not have to be necessarily a lesbian or a gay,” he said.
Solicitor General Tushar Mehta, who was representing the Centre, told the bench that unlike in Mohammedan law, marriage is not just a contract in the case of Hindu law.
Emphasising that the question of granting legal sanction to a relationship is essentially a function of the legislature, Mehta said the issue may have an impact on a statute like the one for adoption if recognition is granted to same-sex marriage.
What is the Centre’s stance on same-sex marriage?
In an affidavit filed before the apex court, the government has opposed the petitions and submitted 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.
At the same time, it submitted that although the Centre limits its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these “are not unlawful”.
It said western decisions sans any basis in Indian constitutional law jurisprudence cannot be imported in this context while asserting that granting recognition to human relations is a legislative function and can never be a subject of judicial adjudication.
Is same-sex marriage legal in India?
On September 6, 2018, the SC decriminalised consensual gay sex between adults in the Navtej Singh Johar verdict. It also decriminalised Section 377 of the India Penal Code (IPC) which considered sex with the same gender as a criminal activity. However, it said that this should not be meant as conferring any right including the right to marry. So, homosexual couples currently do not have a right to legally marry in India.
Which countries have legalised same-sex marriage?
Currently, there are 32 countries globally where same-sex marriage is legal. These are Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.
In Asia, Taiwan was the first country to recognise such unions in 2019.
(With agency inputs)
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