5-judge constitution bench of SC to hear same sex marriage pleas starting Apr 18

The hearing on a batch of petitions would commence in the Supreme Court from April 18 onwards, the top court ordered.

A bench of the Supreme Court headed by the Chief Justice of India (CJI) Dr Dhananjaya Yeshwant Chadrachud was hearing a batch of pleas seeking a direction to the Federal government to declare the same sex marriage as legal.

“We will list for hearing this on April 18, 2023. we invoke Article 145(3) and hear this as a constitutional case,” the CJI said.

The Solicitor General (SG) Tushar Mehta, senior law officer representing the Central government, told the Supreme Court that it is for the Parliament to decide whether same-sex marriage could be statutorily recognised or not.

Senior advocate, Neeraj Kishan Kaul, appearing for one of the petitioners, told the Supreme Court that the stand of the Centre is same as taken before the Delhi High Court.

The words are “a marriage between any two persons may be solemnized,” Kaul said.

“Section 4 of special marriage act uses the word marriage between two persons. Not man or woman. It says marriage between any two persons. Where neither party has a spouse living and is capable of giving a valid consent for marriage. Male of 21 and female of 18,” Kaul argued.

The Supreme Court had in its Navtej Johar verdict, had said the right to life includes right to marriage, procreation and even sexual orientation, this is the first proposition we rely on, Kaul said.

Senior lawyer, K V Vishwanathan appearing for a transgender person, said, what is engaged here is Article 21 and 19 where denial of right to marry is a denial to right to expression, dignity. These are natural rights, these have other implications such as inheritance among others.

Dr Abhishek Manu Singhvi, for one petitioners, said we believe that right to love makes us human, Oscar Wilde speaks about this and Navtej Johar judgment is there. Right to marry cannot be withheld from a class of person solely on the basis of their sexual orientation.

The SG Mehta said the right to love, right to express is already upheld and no one is interfering with that right, but court said it should not be meant to mean that it includes right to marry and the court was careful in doing so.

“The parliament has the right to debate on this very issue,” the SG Mehta said.

He said the moment marriage as a recognized institution comes between same sex, question will come on adoption. parliament will have to examine and see will of the people, psychology of child has to be examined. whether it can be raised in such a way, parliament will factor into societal ethos.

The SG Mehta said it is not between two parties, the court is shouldering grave responsibility on how the society will develop henceforth and will have grave ramifications on the society as a whole.

He said that this continuous argument that there is a stigma that is why this should be done etc etc, there is no stigma. The question is can the relationship upheld in navtej case be given legislative recognition that is the issue.


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