Same Sex Marriage: Five-judge constitution Bench led by CJI Chandrachud to hear matter from April 18

Satya Prakash

Tribune News Service

New Delhi, April 15

A five-judge Constitution Bench led by Chief Justice of India DY Chandrachud will hear from Tuesday petitions seeking legal recognition for same-sex marriages in India.

The other four judges on the Constitution Bench are Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice PS Narasimha and Justice Hima Kohli.

The Constitution Bench will commence the hearing on April 18 on the contentious issue having wider long-term ramifications for the society.

Describing it as a matter of “seminal” importance, a three-judge Bench led by the CJI had on March 13 referred the petitions seeking legal recognition for same sex marriages to a five-judge Constitution Bench

The Centre has said same sex marriage was not in conformity with societal morality and Indian ethos and would cause a “complete havoc” with the delicate balance of personal laws.

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, it said in an affidavit. However, the affidavit stated that though 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”.

On behalf of the Centre, Solicitor General Tushar Mehta had opposed the petitions, saying it should be left to Parliament to take a call on the contentious issue. He requested the top court not to cut-short submissions to be made by lawyers as the verdict will affect the society as a whole. “Please have the entire conspectus before us… because your Lordships are shouldering a very heavy responsibility of how the society would develop henceforth,” Mehta had said.

On behalf of some of the petitioners, senior advocate Neeraj Kishan Kaul had said either the Special Marriage Act could be harmoniously construed to recognise same-sex marriage or the court could rely on the Navtej Singh Johar verdict to recognise it.

Jamiat Ulama-i-Hind has sought to intervene in the matter to oppose it. “This concept of same-sex marriage goes to attack the family system rather than making a family through this process,” Jamiat said in an intervention application filed in the top court.

However, the Delhi Commission for Protection of Child Rights (DCPCR) has supported legalising same-sex marriages; adoption and succession rights for same-sex couples, saying “We cannot become frozen in time.”

The DCPCR – which filed an intervention application in the matter – said multiple studies have demonstrated that same sex couples can be good parents.

“The central and state governments should take steps to create public awareness that same-sex family units are as ‘normal’ as heterosexual family units, and specifically that children belonging to the former are not ‘incomplete’ in any way,” the DCPCR said.