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The Supreme Court observed that a lot of issue raised on Monday relates to right of transgender persons to marry as per natural constitutional entitlement. It, therefore, decided to hear the matter as a constitutional case.
Terming the matter of same-sex marriages as having “seminal importance", the Supreme Court on Monday said that a batch of petitions seeking the legal validation of same-sex marriage will now be heard as a constitutional case by a five-judge bench from April 18. The proceeding will be live-streamed.
While issuing an order, the Supreme Court noted that the petitioners, seeking right of same-sex couples to marriage, "have asserted broader constitutional entitlements around right to life, right to dignity embodied in the constitution, its preamble and natural incidents of articles 14,19 and 21".
The bench said a lot of issue raised before this court relates to right of transgender persons to marry as per natural constitutional entitlement, and hence decided to hear the matter as a constitutional case.
The pleas sought right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well. However, the Centre had been opposing the legalisation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and accepted societal values.
Arguments and counter-arguments in SC today
On right to choose a partner
The Centre said the right to love is not the same as right to marry and maintained that the right to marry is confined only to biological male and female. "Right to love is different from legal mechanism for recognising the institution of marriage between same sex couples," Solicitor General Tushar Mehta appearing for the Centre said.
However, petitioners claimed that right to marry cannot be withheld from a class of people solely based on sexual orientation. They argued that in Section 377, the Supreme Court had upheld the Right to Privacy and Right to Life, which includes Right to express one’s sexual orientation.
"Narrow, pedantic view of the legal provisions restricting marriage to biological man, woman are no longer tenable," they said. "Denial of marital status is violation of right to dignity, self-expression," they added.
On psychological impact on child
The Centre said that Parliament will have to examine psychological effect on a child when being raised by same-sex partners. " (They) will have to see if it is in keeping with societal ethos," the Centre argued.
On Special Marriage Act
The government had earlier said that the registration of marriage of same-sex persons results in violation of existing personal as well as codified law provisions such as "degrees of prohibited relationship", "conditions of marriage" and "ceremonial and ritual requirements" under personal laws governing the individuals.
"Special marriage act also refers to the biological man and biological woman. Here it speaks of age also that is 21 and 18 and changing that will also destroy the legislative intent," the Centre said.
Meanwhile, the lawyer appearing for the petitioners argued that "Section 4 of the Special Marriage Act uses the word marriage between two persons. Not man or woman. It says marriage between any two persons... where neither party has a spouse living and is capable of giving a valid consent for marriage. Male of 21 and female of 18."
What happened earlier
The government had earlier submitted an affidavit before the Supreme Court on Sunday, in which it said the state interest restricts the recognition of marriage only between heterosexual couples. It, however, clarified that same-sex relations are not unlawful.
"The state does not recognise these other forms of marriages or unions, but the same is not unlawful," the government said.
In November last year, the Supreme Court issued a notice to the Centre and Attorney General R Venkataramani seeking their responses on same-sex marriage. The court agreed to hear a plea seeking recognition of the right of same-sex couples to marry.
Notably, the Supreme Court's judgment on Section 377 only decriminalises consensual sex but does not extend to recognition of same-sex union or marriage. The Centre, therefore, said "decriminalisation of Section 377 IPC cannot give rise to a claim to seek recognition for same-sex marriage", Live Law reported.
In 2018, a five-judge Constitution bench of the top court decriminalised a part of the 158-year-old colonial law under Section 377 of the Indian Penal Code, which had criminalised any sexual activity which was "against the order of nature". However, members of the LGBTQIA+ community have been waiting for same-sex marriages to also be legalised.