[BREAKING] Plea before Supreme Court for recognition of same-sex marriages to be heard by Constitution Bench

The Supreme Court on Monday said that the plea before it for recognition of same-sex marriages will be heard by a Constitution bench of the top court [Supriyo and anr vs Union of India]..A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala said that plea raises issues concerning rights which are Constitutional in nature and hence, would have to be heard by a Constitution bench of five judges. "One of the issues raised before the Court relates to the rights of transgender couples to marry, as a natural incident of their constitutional entitlements. Having due regard to the broader context of the petitions before this Court and 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 Bench of five Judges of this Court in view of the provisions of Article 145(3) of the Constitution. We accordingly direct that the hearing of these petitions be posted before a Constitution Bench," the Court said in its order.Article 145(3) provides that the minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution, shall be five.The Court posted the matter for hearing on April 18 when it will come up before a bench of five judges. .The top court was hearing a batch of petitions seeking recognition of same-sex marriages under law. The pleas have sought that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.The Central government has opposed the petitions filed before the Supreme Court by gay couples.In an affidavit filed before the top court on Sunday, the Central government said that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.The latter requires a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two, the government said.The government has argued that there can be no fundamental right for recognition of a particular form of social relationship.The Centre has contended that the registration of marriage of same-sex persons will result in violation of existing personal as well as codified law provisions such as ‘degrees of prohibited relationship’, ‘conditions of marriage’ and ‘ceremonial and ritual requirements’ under personal laws governing the individuals.The government clarified that though same sex relations are not unlawful but State only recognises heterosexual relationship for the mode of marriage.The bench had in January this year transferred all petitions seeking recognition of same-sex marriages, pending before several High Courts, to itself..Arguments today.Solicitor General (SG) Tushar Mehta, appearing for the Central government, said that recognition of same-sex marriages will lead to various legal issues."Marriage is not just a contract for Hindu and it may be so in Mohammedan law. In Islam too, it is between biological man and biological woman. 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 said.“Adopted child of a gay or lesbian couple does not have to be gay or a lesbian Solicitor,” the CJI responded.Special marriage act also refers to the biological man and biological woman, the SG pointed out. “The court is shouldering grave responsibility on how the society will develop henceforth and will have grave ramifications on the society as a whole,” the SG said.He, however, maintained that the government’s stance was specifically on same-sex marriages and not on such relationships which have already been recognised by the Supreme Court in its judgment in Navtej Singh Johar’s judgment.However, even in that judgment, the apex court said that the right to have such relationships should not be construed as right to marry.“Right to love, right to express is already upheld and no one is interfering with that right But court said that it should not be meant to mean that it includes right to marry and the court was careful in doing so,” the SG said.Senior Advocate Neeraj Kishan Kaul, appearing for the petitioner, said that after the Navtej Singh Johar judgment, it would not be correct to rely on arguments like cultural ethos etc.“Section 4 of Special Marriage Act uses the word 'marriage between two persons' and 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. In Navtej Johar, right to life includes right to marriage, procreation and even sexual orientation, this is the first proposition we rely on,” Kaul said.Kaul also submitted that the proceedings in the case should be streamed live.“These proceedings need to be live streamed since there are people all across India interested in this. Swapnil Tripathi case held that live streaming has to be in cases of public or constitutional importance. After Navtej judgment it was held that such cases must be given all publicity as required,” Kaul said.Senior Advocate KV Viswanathan, appearing for one of the petitioners, said that the government is refusing to recognise same-sex marriages despite the Transgender Protection Act which seeks to confer equal rights on LGBTQ persons.“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 etc,” he contended.Dr. Abhishek Manu Singhvi, also representing the petitioners, said that right to marry cannot be withheld from a class of person solely on the basis of their sexual orientation.“In case right to marry is extend to this class it must be extended in equal terms. Special Marriage act has to be read in a way to extend to such classes also. Terms such as ‘man’, ‘woman’ have to be done away with,” he said.The Court noted that the petitioners have asserted broader constitutional entitlements around right to life, right to dignity embodied in the constitution, its preamble and natural incidents of Articles 14, 19 and 21.“The submissions involve the inter play between constitutional rights on the one hand and specific legislative enactments including the Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act and the Transgender Persons Protection of Rights Act 2019 on the other,” the bench noted.In view of this, it referred the matter to Constitution Bench.The bench also directed that petitioners to rely on the common compilation and asked parties to inform the nodal counsel about all cases which they would be relying upon.“The petitions shall be listed for final disposal and hearing on 18 April 2023 at 10.30 am ... In the event that any supplement is required to be made to deal with the issues which may have been raised in any individual petition or a subsequent petition which has been filed after the date of the counter affidavit, that shall be done within a period of three weeks. Rejoinder affidavit, if any, may be filed before the next date of listing,” the bench added..[Read order]