New Delhi: The Supreme Court on Wednesday trashed the Centre’s submission that petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views. The court further countered another submission on the adoption rights of same-sex couples which said that it will have a psychological impact on the adopted children.
The government has no data to show that this is an urban elitist concept or something, observed the five-judge Constitution bench led by Chief Justice of India DY Chandrachud while considering the petitions seeking legal recognition of same-sex marriage. The Centre in its fresh application moved on Sunday raising preliminary objection on the petitions, has said that petitions seeking legal recognition of same-sex marriage merely reflect urban elitist views.
The court countered the submission and said that something which is innate could not have a class bias. The court also remarked that since one of the gay or lesbian couples can still adopt a child, the argument that this will create a psychological impact on the child is belied. CJI Chandrachud, however, also remarked when one of the gay or lesbian couples can still adopt a child but the child loses the benefits of parenthood of both parents. The argument that went on for hours witnessed an exchange of various submissions from all parties connected to the case.
When the hearing began in the morning, Solicitor General Tushar Mehta apprised the Supreme Court that the Centre has filed a fresh affidavit urging the top court to make States and Union Territories parties in the case. The Centre apprised the SC that the Union of India has issued a letter dated April 18, 2023, to all States inviting comments and views on the seminal issue raised in the present batch of petitions. CJI DY Chandrachud remarked that it is excellent that the Centre has now informed the states that the matter is going on. So now it is not that the states are unaware, the court said.
Senior Advocate Mukul Rohatgi, appearing for one of the petitioners submitted that the Supreme Court has already granted the rights to the members of the LGBTQIA++ community and that he was not reinventing the wheel. Advocate Rohtagi read out various passages of Navtej Singh Johar’s matter in which the court had held that sexual orientation falls in the zone of privacy. He further argued that the principle of Constitutional Morality must guide the Court, which is inhered in the Preamble and added that Supreme Court has observed in Navtej Singh Johar’s case that decriminalisation is the first step. Citing top court judgements, he said that SC has held that any person has the fundamental right to marry a person of one’s own choice.
Advocate Rohtagi thereafter discussed at length the provisions of the Special Marriage Act, 1954 to interpret it to include the LGBTQAI++ community within its scope and granting the right of solemnisation of their marriage within its provisions. As a matter of proper reading of the Special Marriage Act, Rohtagi submitted that the words ‘woman’ and ‘man’ should be read as ‘person’ and the words ‘husband’ and ‘wife’ be read as ‘spouse’. Thereafter, Rohtagi read multiple provisions including Sections 2, 4, 22, 27, 36 and 37 of the Special Marriage Act, 1954 to propose workability of solemnisation and/or registration of marriages of same-sex couples under thereto.
Senior Advocate Mukul Rohatgi was assisted by senior advocates Saurabh Kirpal, Maneka Guruswamy, advocate Arundhati Katju and a team of advocates from Karanjawala & Co. Advocates including Tahira Karanjawala and Niharika Karanjawala. Senior Advocate Abhishek Manu Singhvi, appearing for one of the petitioners, also emphasised granting the right of marriage to same-sex couples as it pointed out that marriage is important due to the sense of security it provides to couples.
He asked why should there be an exclusion of one set of couples and added that the petitioners are seeking marriage equality because it provides financial support, security and other matters such as adoption. Petitioner’s lawyer asserted that marital status by itself is a source of dignity, fulfilment and self-respect as a core member of society. The hearing on the matter will continue tomorrow.
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