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The Legal Affair

Let's talk Law

The Legal Affair

Let's talk Law

Five judge bench of supreme court to hear the petitions seeking to recognize same sex marriages

Five judge bench of supreme court to hear the petitions seeking to recognize same sex marriages

Recently the Supreme Court notified the composition of the five-judge bench for hearing the petitions seeking legal recognition for same-sex marriage in India.

The bench will consist of  Chief Justice of India D Y Chandrachud, J Sanjay kishan Kaul, J Ravindra Bhat, J Hima Kohli and J P S Narasimha and the hearing is stipulated on April 18.

A batch of petitions was filed in the Supreme Court challenging the Hindu Marriage Act, foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages. 

The government had opposed these petitions in a counter affidavit stating that it was a matter for the legislature to decide and that recognition of marriage statutorily is limited to marriage as being heterosexual in nature and no fundamental rights under the constitution are breached due to non-recognition of same-sex marriage.

Yet in another counter affidavit in the Supreme Court filed by the Union of India the centre opposed the petition seeking to legalize same-sex marriage in India stating that marriage is an exclusively heterogeneous institution and those seeking to legalize same-sex marriage represent urban elitist views and the majority of people wish that marriage should only be amongst heterosexual individuals and thus sought to dismiss the petitions as being non-maintainable.

Grounds on which the Union Of India is opposing the legal recognition of same-sex marriage:-

It is a matter of legislature and not the court- 

The centre argued that the courts cannot create or recognize marriages by way of judicial interpretation or by striking down the existing legislative frameworks for marriages.

The centre cited the order of the Supreme Court in Ashwini Kumar Upadhyay v/s Union of India and highlighted that the court refrained from framing gender-neutral and religion-neutral laws on the ground that the same comes within the legislative domain and the Supreme Court therefore could not issue a mandamus asking the parliament to frame laws.

The centre contended that in countries where same-sex marriage has been recognized the majority of them have done it through the legislative route.

Same-sex marriage is an urban elitist view majority is not in favour of- 

The centre contended that even though India has different religions, castes, sub-castes, and schools of religions the personal laws and customs governing marriage in them  only recognize marriage among heterosexual persons and also stated that the social acceptance and adherence to societal ethos, common values, beliefs across religions in case of the socio-legal institution of marriage should not be confused with majoritarianism

The centre argued that the petition reveals merely an urban elitist view and cannot be compared with the legislature which reflects the views of a much wider spectrum of people across the country.

It is not discriminatory to not recognize same-sex marriages- 

The centre argued that it is not discriminatory to not recognize same-sex marriages.

It contended that marriage is a sacrament in all branches of Hindu law even in Islam it is a sacred contract and a valid marriage is only valid between a biological male and biological female.

The centre contended that the same is the position across all religions in India even the special Marriage Act reflects the legislative policy of marriage between a biological man and biological woman and recognizes the elements of personal laws and customs and therefore bringing same-sex marriage into the existing marriage institution is not possible as it would amount to comparing two non-comparable classes.

Marriage is beyond a private sphere- 

The centre argued that marriage is beyond a private sphere and the regulation of marriage is an issue of acceptance by society and must be decided only by the legislature which is a body representing the people and their will.