Indian SC directs petitions seeking same-sex marriage legalisation to constitutional bench

Indian Supreme Court on Monday directed to list all the petitions seeking legal recognition of same-sex marriage issue before a five judgesconstitution bench. The highest court has already decriminalised homosexuality in 2018 but now the LGBTQ community are hoping for the legalisation of homosexual marriages.

All the petitions, which are strongly contended by the Centre, are now listed for hearing on 18 April 2023, as per Live Law portal.

Appearing for the petitioners, Dr AM Singhvi said, "Right to love makes us human". It should be extended in equal terms. You can extend it only on equal terms only if your lordships reads down the Special Marriage Act and other acts. It has to be read in such a way that terms such as man, woman are done away with."

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Senior Advocate KV Vishwanathan said, "Transgender Protection Act exists even if the Centre says that we don't recognise such a union."

"This case is not about a transgender statute or the Hindu Marriage Act. What it is about is Article 21 and Article 19(1)(a). The right of choosing a partner is the right of expression, right of dignity. It's only a natural right, an assertion of a right. It has implications," he added.

Chief Justice of India, DY Chandrachud said, "We are not on arguments today but this will help everyone understand."

The apex court made the remarks to list all the pleas to a constitutional bench while hearing the clubbed petitions seeking the legal recogisition of same sex marriage in world's largest democracy.

During the hearing, Solicitor General Tushar Mehta,appearing for Centre, said in the apex court, “that the right to love, express and freedom of choice is already upheld, and no one is interfering with that right, but that does not mean conferring the right of marriage.”

Also Read | Centre opposes same-sex marriages, says those between a man and a woman 'the norm throughout history'

SG Mehta said that the "moment marriage as a recognized institution comes between same sex, question will come on adoption and therefore Parliament will have to see the issue of psychology of child, which has to be examined whether it can be raised in such a way."

Supreme Court remarked that the adopted child of a gay or lesbian couple does not have to be gay or a lesbian. Centre has already voiced its strong opposition towards the petitions filed before the court where it said that the matter for legalization should not be dealt with the judiciary but the Indian Parliament.

Also Read | 'Strangers in eyes of law': WION speaks with gay couple as India's top court set to hear petitions on marriage

The Centre in its affidavit, which came in response to the pleas, said that “recognised deviation…can occur only before the competent legislature”.

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“Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country,” the centre added.

If same-sex marriage is legalised in India, the country will become the second Asian nation to have done so. Taiwan was the first Asian nation to have legalised the same-sex marriage on 24 May in 2019.Indian SC in the year 2014 recognised transgender people as a "third gender."

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