New Delhi, March 13.
The central government on Monday urged the Supreme Court not to hear pleas to recognise marriage between same sex couples and instead leave it to the legislature to take a call, but the top court said it would press ahead with its adjudication from April 18.
Detailed arguments will be heard by a constitution bench (of five judges) of the top court from April 18, a three-judge bench led by Chief Justice of India D.Y. Chandrachud, said. He was sitting alongside Justices P.S. Narasimha and JB Pardiwala.
It will be live streamed as in case of any other constitution bench matters.
The central government continued to oppose any such suggestion on the ground that it was against Indian social ethos. No one was interfering with the LGBT community’s right to love or lead a dignified life, he said.
“Nobody is interfering with their right to love or live together,” Solicitor General Tushar Mehta said. “There is no stigma on these relationships. But the issue here is state recognition of such unions,” the SG said.
But the right to marry was not “rightly” conceded by the top court in the Navtej Singh Sarna case which diluted Section 377, IPC, and decriminalised all adult consensual sexual behaviour, he said.
“That will affect society as a whole. It will decide how society will develop henceforth,” he said, urging the court to leave the issue to be decided by Parliament on the basis of “societal ethos”.
Parliament will have to decide if such unions will impact such marriages will have on the psychology of a child, he said. Courts ought not to decide such issues, he said.
Marriage in Hindu and Mohammedan law is a marriage between a biological man and a biological woman sanctified by religion, Mehta said.
Opposing his stand in court were a host of counsels including senior advocates K.V. Vishwanathan, Sanjay Kishan Kaul, Menaka Guruswami and advocate Arundhati Katju. They argued that the relevant laws could easily be amended to make them gender neutral.
The notices and objection clauses in the Special Marriage Act could also be done away with to remove harassment of same sex couples, they said. Mehta objected to this saying that the issue of whether such legal recognition ought to be granted should be decided first.
The top court had in 2018 diluted Section 377, of the Indian Penal Code, decriminalising all consensual sexual behaviour between two consenting adults irrespective of gender.
This not only allowed same sex couples to live together without harassment and also prompted demands to recognise same sex unions and allow them to adopt children, create families.
The central government has steadfastly opposed this on the ground that a family has traditionally been defined to include a heterosexual couple and their children. Same sex marriages would not conform to this, it said.
The institution of marriage and family are important social institutions that play an important role in rearing of children, their mental and psychological upbringing and also provide security, support and companionship to other members of the society.
Marriages in India, the government said, take place between a biological man and a woman under any of the personal or codified laws such as the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936, the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969.
“… the legislative understanding of marriage in the Indian statutory and personal law regime is very specific viz. marriage between a biological man and a biological woman only,” it said. When such parties enter into marriage, they create an institution from which several rights and liabilities flow, the government said.
The government would also have the courts back off on taking a stand on the issue. Societal morality is a relevant yardstick for deciding whether a law ought to be brought in by the legislature, the government said in an affidavit.
It is up to the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos, it said.
