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SC begins hearing of pleas to recognise same-sex marriages; details here

A five-judge Constitution bench comprising chief justice of India (CJI) DY Chandrachud and justices SK Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha is hearing the pleas

Supreme Court (Photo: Wikipedia)

Supreme Court (Photo: Wikipedia)

BS Web Team New Delhi

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The Supreme Court of India (SC) on Tuesday began hearing a batch of pleas seeking legal recognition of same-sex marriages in the country. A five-judge Constitution bench comprising chief justice of India (CJI) DY Chandrachud and justices SK Kaul, Ravindra Bhat, Hima Kohli and PS Narasimha is hearing the pleas.

The petitions will seek recognition of same-sex marriages under several acts, including the Special Marriage Act (SMA), Foreign Marriage Act (FMA) and the Hindu Marriage Act.

Same-sex marriage: A timeline

In November 2022, two gay couples moved to the SC to seek recognition of same-sex marriage under the SMA. The plea sought that SMA be made gender-neutral. The bench headed by Chandrachud sought a response from the Centre and the Attorney General of India.

On December 14, 2022, SC issued a notice in another plea filed by a same-sex couple. The married couple, one Indian national and one US citizen, sought legal recognition of their marriage under the FMA.

On January 6, SC directed all petitions pending before High Courts to be transferred to the Supreme Court. The SC appointed advocate Kanu Agarwal as the nodal counsel for the Union of India and advocate Arundhati Katju for the petitioners to assist the court.

On March 12, Centre filed an affidavit before the court opposing same-sex marriage, stating that the concept of an Indian family involves a biological man and woman, and it will not be possible for the court to change the entire legislative policy of the country that was deeply embedded in religious and societal norms.

"Amongst Hindus, it is a sacrament, a holy union for the performance of reciprocal duties between a man and a woman. In Muslims, it is a contract, but again envisaged only between a biological man and a biological woman," the Centre's affidavit stated.

On April 1, the Jamait Ulama-i-Hind opposed the pleas seeking legal recognition of same-sex marriages. "Islam's prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. The position of Islam with respect to the prohibition on homosexuality is undisputed and established," their plea read.

On April 15, the apex court notified the composition of the five-judge bench to hear the pleas.

Centre's objection to same-sex marriages

On April 17. Centre filed a new application in the apex court, questioning the maintainability of the pleas. It said that these marriages could not be recognised through judicial adjudication and were under the legislature's domain.

Terming it as "mere urban elitist views for social acceptance", Centre said that the universally accepted socio-legal relationships like marriages are "deeply rooted in the Indian social context and indeed is considered a sacrament in all branches of Hindu law. Even in Islam, though it is a contract, it is a sacred contract and a valid marriage is only between a biological male and a biological woman."

It added that marriage is an "exclusively heterogenous institution", and the question of considering it equal to the existing concept of marriage "seriously affects the interests of every citizen".

NCPCR's objection to same-sex marriage

After the Centre's objection, the National Commission for Protection of Child Rights (NCPCR) said that children raised by same-sex parents may have limited exposure to traditional gender role models, which could impact their understanding of gender roles and gender identity.

The NCPCR further stated that exposure of these children would be limited, and their overall personality development would be impacted.

The Delhi Commission for Protection of Child Rights (DCPCR) had earlier filed an intervention application in the SC supporting same-sex marriages. It said that there was no legal evidence to show that same-sex couples are unfit to be parents or that it impacts the psychological development of children.

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First Published: Apr 18 2023 | 12:34 PM IST

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