New Delhi, April 18.
The Supreme Court on Tuesday said that it won’t get into personal laws of different religious groups, which frown upon homosexuality, while deciding whether to allow homosexual couples to marry, adopt and have a family.
“We won’t get into personal laws,” CJI D.Y. Chandrachud, who’s heading the constitution bench, examining the issue, said at the outset. Justice Sanjay Kishan Kaul also echoed this view. “We don’t have to get into it,” Chandrachud said.
This suggests that the court may just allow such marriages under the Special Marriage Act with a tweak or two to the Act which is dubbed as a mini-uniform civil code. The act facilitates inter-faith marriages by allowing each of the parties to retain their own faith.
The constitution bench is hearing a host of pleas to allow the LGBT community to marry and adopt children and have families. Homosexual adult sexual behaviour was earlier decriminalised under a court order by reading down Section 377 of the Indian Penal Code.
The plea to be allowed to marry, adopt and have families is a logical corollary.
But this has run into opposition from the Union government which has argued that a court debate between a few wise men at the bar and bench was hardly representative of the sentiments of a huge nation and ought to be left to Parliament to decide.
The bench rejected this preliminary argument of the Union government.
The government also claimed that it would be against the personal laws of every community. Marriage was a sacrament under the personal laws of every religion, Solicitor General Tushar Mehta said. The court should refrain from entering this arena, he said.
It should not create a socio-legal system which will allow the LGBT community to marry, he said.
Senior advocate Kapil Sibal said that he was personally in favour of allowing such marriages, but had a caveat. He said that the ought to do it as a comprehensive one-time exercise and not in a piece-meal manner.
Sibal was appearing for the Jamaat but chose not to argue against it when the bench clarified that it would not get into personal laws which do not recognise such unions. Sibal wondered what would happen if the couple were to divorce.
Who will be treated as the father and who the mother, he demanded to know. “Don’t treat this piecemeal, it will be dangerous for such unions,” Sibal warned.
Speaking for the LGBT community, senior advocate Mukul Rohatgi, argued that denying them the right to have a marry, adopt and have a family was also a way of stigmatising the community.
Our lives are passing us by, he said, urging the court to grant them the right to life with dignity as they want to instead of allowing them to merely exist. Further arguments in the case will continue.
