Recognition of Same-Sex Marriage: SC Refers Pleas to Constitutional Bench

"It is a matter of seminal importance," Chief Justice of India DY Chandrachud said.

The Supreme Court on Monday, 13 March, directed that the list of petitions related to the legal recognition of same-sex marriage would be heard by a five-judge Constitution Bench.

Calling it a matter of "seminal importance," Chief Justice of India DY Chandrachud said:

"We will list this for hearing on 18th April. Perhaps, it is a matter important to invoke 145(3) (to refer to Constitution Bench)."

What Was Said in the Hearing?

Appearing for the central government, Solicitor General (SG) Tushar Mehta said, according to LiveLaw: "This continuous argument that there is a stigma, that is why this should be done etc, etc,...There is NO STIGMA milord. The question is, can the relationship upheld in the Navtej Singh Johar case be given legislative recognition? That is the issue."

It is in the Navtej Singh Johar case that the Supreme Court read down Section 377 and decriminalised all consensual sex among adults.

The SG further said that same-sex marriage pertains to a legislative function.

"It will then be about adoption. Parliament will have to see psychology of a child who has not been reared by a father and a mother – these are the issues. The parliament will have to debate and take a call on whether in view of our ethos."

Tushar Mehta, as reported by LiveLaw

However, CJI Chandrachud said that the adopted child of a gay or lesbian couple "need not necessarily be gay or lesbian."

"This is a matter having grave ramifications on the society as a whole," SG Mehta added, emphasising the Centre's opposition to the matter.

Petitioners' Argument

Senior Advocate NK Kaul, representing one set of the petitioners, yet again called for the proceedings to be live-streamed.

"The proceedings need to be live-streamed. There are people across India interested in this. The Navtej Singh Johar judgment held that such verdicts need to be given as much publicity as possible," he added.

"The submissions involve the interplay between constitutional rights and specific legislative enactments including Special Marriage Act, Foreign Marriage Act. We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to A 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench," the CJI said.

The People Behind the Case

Hyderabad-based Supriyo Chakraborty and Abhay Dang, who have been together for 10 years, filed the first PIL in the case. They had a commitment ceremony in December 2021, where their relationship was blessed by their parents and family. They are now seeking legal recognition.

The second PIL has been filed by Parth Phiroze Mehrotra and Uday Raj Anand who have been together for 17 years, and are raising two children together. However, due to the non-recognition, they are unable to have a legal relationship with their children.

At least nine petitions are currently being heard by the Delhi High Court and the Kerala High Court, seeking recognition of same-sex marriage under the Special Marriage Act, Foreign Marriage Act, and Hindu Marriage Act.

Earlier in November, the Centre told the Kerala High Court that it was taking steps to get all the writ petitions transferred to the Supreme Court.