Same-Sex Marriage Issue Of "Seminal Importance": Supreme Court

Final arguments over legal recognition to same-sex marriages in India will be heard on April 18 by a five-judge Constitution bench, the Supreme Court said today. Any decision on the subject would have a huge bearing on society, the Supreme Court commented, calling it " a matter of seminal importance".

The hearing will be live-streamed on the Supreme Court website and on YouTube.

"This judgment will have a huge bearing on society - don't cut down anyone's time and this must be considered," a three-judge bench led by Chief Justice DY Chandrachud said.

"We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to Article 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench," the judges said.

Article 145 (3) says at least five judges should decide on any case involving a substantial question of law related to the interpretation of the constitution.

At least four gay couples have in recent months asked the court to recognise same-sex marriages, arguing that the right to marry a person of one's choice should extend to the LGBTQ community.

The Centre argued that the same-sex marriage is not compatible with the concept of an "Indian family unit", which, it said, consists 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".

Solicitor-General Tushar Mehta, representing the government, said recognizing gay marriages would trigger legal problems.

"Marriage is not just a contract for Hindus 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 the will of the people, the psychology of the child has to be examined... whether it can be raised in such a way, parliament will factor into societal ethos," Mr Mehta said.

Chief Justice Chandrachud replied: "The adopted child of a gay or lesbian couple does not have to be a gay or lesbian solicitor."

The Centre said the decriminalising of gay sex should not be construed as the right to marry. The government lawyer also said the subject involved a legislative function.

Representing the petitioners, Abhishek Manu Singhvi said the right to marry could not be withheld from anyone "solely on the basis of their sexual orientation".

"In case the right to marry is extended to this class, it must be extended in equal terms. The 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," Mr Singhvi said.