A Bench of Chief Justice of India (CJI) DY Chandrachud and Justices PS Narasimha and JB Pardiwala responded to arguments of Solicitor General (SG) Tushar Mehta, who appeared for the Central government.
“The moment marriage as a recognised institution comes between same-sex, question will come on adoption. Parliament will have to examine and see will of the people, psychology of child has to be examined; whether it can be raised in such a way, Parliament will factor into societal ethos,” the SG said.
To this the CJI responded,
“The adopted child of a gay or lesbian couple does not have to be gay or a lesbian, Solicitor.”
The SG replied saying that the question was not concerning the sexual orientation of the child, but the impact on their mental development, since they would be seeing two males or two females as their parents unlike other children.
Mehta emphasised that such sensitive issues will have to be examined by the parliament from legal as well as other considerations.
“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,” he said.
The Court eventually posted the matter for hearing on April 18, when it will come up before a bench of five judges. The apex court earlier today said that the matter will be heard by a Constitution Bench.
The observations and order of reference came in a batch of petitions seeking recognition of same-sex marriage under law. The pleas have sought that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.
The Central government has opposed the petitions filed before the Supreme Court by gay couples, arguing that living together as partners and having sexual relationships by same sex individuals is not comparable to the Indian family unit concept that involves a biological man and a biological woman with children born out of such wedlock.
The government has argued that there can be no fundamental right for recognition of a particular form of social relationship.
It further contended that the registration of marriage of same-sex persons will result in violation of existing personal as well as codified law provisions governing individuals, such as ‘degrees of prohibited relationship’, ‘conditions of marriage’ and ‘ceremonial and ritual requirements’.
The government clarified that though same-sex relations are not unlawful, the State only recognises heterosexual relationships for the purpose of marriage.
Source: Bar and Bench
