'Issue is of seminal importance': SC refers same-sex marriage matter to Constitution bench

The Supreme Court on Monday referred a plea related to recognition of same sex marriage to a Constitution bench for final hearing, saying the issue is of seminal importance in view of interplay of various rights including right to live with dignity.

A bench of Chief Justice D Y Chandrachud and Justices P S Narasimha and J B Pardiwala posted the matter for consideration before a five-judge bench on April 18.

The proceedings in the matter would be live streamed. "We will invoke Article 145(3) of the Constitution and have this matter decided by a Constitution bench of five judges," the bench said after a brief hearing.

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Appearing for the Union government, Solicitor General Tushar Mehta, said the right to love, express and freedom of choice has already been recognised by the Supreme Court and no one was interfering with those rights but conferring the right of marriage fell in exclusive domain of legislature.

However, if the marriage as a recognised institution comes between same sex, question will come on adoption and therefore Parliament will have to see the issue of psychology of child. It has to be examined whether it can be raised in such a way, he contended.

Senior advocate Neeraj Kishan Kaul on behalf of the petitioners said the Special Marriage Act recognised marriage between two persons.

He also said in the Navtej Johar (decriminalisation of Section 377 of IPC), the Supreme Court had said the right to life included the right to marriage, procreation and even sexual orientation.

Senior advocate K V Vishwanathan also for petitioners said what is engaged here is right to life under Article 21 and right to expression under Article 19 of the Constitution. Denial of right to marry is denial of right to expression and dignity, these are natural rights to individuals, he said.

Senior advocate A M Singhvi said the right to marry cannot be withheld to a class of persons solely on the basis of their sexual orientation. He also submitted personal laws could harmoniously be read down to make a provision for it.

Mehta, for his party, contended the SC had in Navtej Johar had already clarified on the issue of marriage of same sex couple.

"The question of stigma etc has already been taken care of. The court is shouldering the grave responsibility on how the society would henceforth develop," he said.

On Sunday, the Union government, in an affidavit, opposed before the court a plea for recognising the marriage of same sex couple, saying it would not only violate the codified law but would also cause a complete havoc with the delicate balance of personal laws in the country and the accepted societal values.

It said living together as partners and having sexual relationship by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit a husband, a wife, and children born out of the union who are reared by the biological man as father and the biological woman as mother.

The Centre also maintained that same-sex marriage is not in conformity with societal morality and Indian ethos.