Same-sex marriage issue is of 'seminal importance', says Supreme Court; refers pleas to 5-judge Constitution Bench

Tribune News Service

Satya Prakash

New Delhi, March 13

Terming it a matter of "seminal importance", the Supreme Court on Monday a referred petitions seeking validation of same-sex marriage to a five-judge Constitution Bench.

A Bench led by CJI DY Chandrachud posted the matter for further hearing on April 18.

"Lot of issues raised before this court relates to right of transgender persons to marry as per natural constitutional entitlement. We are of considered view that issues here is resolved by five judges of this court under 145(3) of the Constitution. We direct hearing of this case be posted before a Constitution Bench," said the Bench which also included Justice PS Narasimha and Justice JB Pardiwala.

On behalf of the Centre, Solicitor General Tushar Mehta opposed the petitions and said it should be left to Parliament to take a call on the issue.

In an affidavit filed in the top court, the Centre 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.

It said the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. "This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation," it submitted.

Maintaining that the notion of marriage itself necessarily and inevitably presupposed a union between two persons of the opposite sex, the Centre said this definition was socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation.

“It must be kept in mind that granting recognition and conferring rights recognising human relations which has its consequences in law, and privileges, is in essence a legislative function and can never be the subject matter of judicial adjudication, the Centre said, terming the petitioners’ demand as “wholly unsustainable, untenable and misplaced”.

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.

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”.

The Supreme Court had on November 25, 2022 issued notice to the Centre and the Attorney General on two petitions filed by gay couples seeking recognition for same sex marriages under the Special Marriage Act, 1954. On December 14, 2022, it issued notice to the Government on another petition by a same-sex couple married in the US seeking legal recognition of their marriage in India.

Maintaining that family issues were far beyond mere recognition and registration of marriage between persons belonging to the same gender, the Centre said, “Living together as partners and having sexual relationship by same sex individuals (which is decriminalised now) is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother.”

Decisions of western courts without any basis in Indian constitutional law jurisprudence cannot be imported in this context, it said, asserting that granting recognition to human relations was a legislative function and can never be a subject of judicial adjudication.

Parliament has framed marriage laws governed by personal laws/codified laws relatable to customs of various religious communities to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences, it said.

The Centre cautioned “that any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values.”

While there may be various other forms of marriages or unions or personal understandings of relationships between individuals in a society, the State limits the recognition to the heterosexual form.

Marriage between a biological man and a biological woman takes place either under the personal laws or codified laws namely, the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936 or the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969, it submitted.

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