New Delhi: The Supreme Court Monday transferred a batch of pleas seeking legal recognition to the same-sex marriages to a five-judge constitution bench for adjudication. The top court asserted that the issue is of “seminal importance”.
A bench comprising of Chief Justice DY Chandrachud, Justices PS Narasimha and JB Pardiwala observed that the matter involves an interplay between constitutional rights and special legislative enactments that includes the Special Marriage Act.
“We are of the considered view that it would be appropriate if the issues raised are resolved by a bench of five judges with due regard to Article 145 (3) of the Constitution. Thus, we direct the matter be placed before a five-judge Constitution bench,” said the bench.
The top court will hear the matter on April 18 and the streaming of proceddings will be live.
Appearing for the Centre, Solicitor General Tushar Mehta said, ‘the right to love, express and freedom of choice is already upheld and no one is interfering with that right but doesn’t mean conferring the right of marriage.’
He added that the moment marriage as a recognized institution comes between same sex, question will come on adoption and therefore Parliament will have to see the issue of psychology of child, which has to be examined whether it can be raised in such a way.
However, the bench remarked that adopted child of a gay or lesbian couple does not have to be gay or a lesbian.
Senior Advocate KV Vishwanathan apprised the SC that the transgender protection act exists even though the centre stated that it doesn’t recognise such a union.
The court was hearing a batch of petitions pertaining to the issue of same-sex marriage, which had challenged the denial of access to the institution of marriage to the members of the LGBTQ+ community as being in contravention of Part III of the Constitution, including Articles 14,15,19 and 21.
The Senior counsel appearing for the Petitioners submitted that the petitions pertained to issues of fundamental rights.
Centre has opposed the prayers in the petition on the ground that such questions ought to be left to the legislature which is representative of the will of the people.
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The Bench was pleased to fix a schedule for hearing for this batch of petitions and directed that the matter be placed before a Hon’ble Constitution Bench pursuant to Article 145(3) of the Constitution.
One of the petitions was represented by Senior Advocates Mukul Rohatgi and Saurabh Kirpal briefed by a team of advocates from Karanjawala and Co.
Earlier, Centre, in its affidavit, had opposed the plea seeking legal recognition of same-sex marriage, saying that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit and they are clearly distinct classes which cannot be treated identically.
The Centre filed the affidavit countering the demand made by various petitioners seeking legal recognition of same-sex marriage.
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