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Synopsis

The Supreme Court today directed that the pleas seeking recognition for same sex marriage shall be heard by a five-judge Constitution bench.

A CJI Chandrachud led bench added that the case will be heard on April 18 for final disposal.

"A common compilation be placed before us, and reference to be made only to that compilation when the matter is heard", added the bench also comprising Justices PS Narasimha and JB Pardiwala.

When the case was taken up, Senior Advocate Abhishek Manu Singhvi informed the bench today that as per Navtej Singh Johar judgment (whereby Section 377 IPC was decriminalized and thus all consensual sex among adults, including homosexual sex was decriminalized) the right to marry could not solely be withheld on the basis of a gender identity or sexual orientation.

"This right can be equally provided only if your lordships read down or read up the Special Marriage Act...", added Singhvi.

Furthermore, Senior Advocate NK Kaul, appearing on behalf of one of the petitioners submitted that Section 4 of the Special Marriage Act referred to marriage between any two persons and not any specific gender.

"In Navtej also, your lordships said right to life includes, right to marry, and sexual orientation. In Puttuswamy also privacy was held to include sexual orientation", Kaul said.

Solicitor General Tushar Mehta, making submissions for the Central government told the court that while the right to love was not being interfered with, as permitted in Navtej, but while tabling the judgment the Supreme Court was very clear in saying that the union of persons was not meant to be the union of marriage.

Importantly, the Central Government on Sunday filed an affidavit before the Supreme Court opposing the demand for legal recognition of same-sex marriages in India.

Citing the ‘nature of the concept of marriage’, the affidavit stated that 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”, the affidavit read.

It was further stated that: “Depending upon the personal laws applicable, the nature of marriage as an institution is different. Among Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this Hon’ble Court to change the entire legislative policy of the country deeply embedded in religious and societal norms”.

Notably, on January 6, the Supreme Court had ordered to transfer of all pleas pending before various high courts seeking recognition for same-sex marriage to itself.

"Any petitioner who desires to address this court through a virtual platform can do so if they suffer from a difficulty in appearing before us physically", the Top Court had further ordered.

In November last year, the Supreme Court issued a notice in the plea moved by a gay couple seeking legal recognition of same-sex marriage under the Special Marriage Act, of 1954.

Senior Advocate Mukul Rohatgi appearing on behalf of the petitioner-couple had then submitted before a bench comprising CJI Chandrachud and Justice Hima Kohli that the issue was a sequel to Navtej Singh Johar's judgment.

The absence of a legal framework that allows members of the LGBTQ+ community to marry any person of their choice had been raised by the instant plea.

Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions)