SC Refers Pleas on Same-Sex Marriage to Constitution Bench, to Hear Matter from April 18

A bench led by CJI Chandrachud said "submissions involve the interplay between constitutional rights on the one hand and specific legislative enactments".

New Delhi: The Supreme Court on Monday, March 13, said it will hear the pleas seeking recognition of same-sex marriage by a five-judge constitution bench from April 18.

While noting that any decision on the matter would have a “huge bearing on society”, a three-judge bench headed by Chief Justice D.Y. Chandrachud said it is only logical that a constitution bench heard the matter given that it involves a substantial questions of law and the interpretation of the constitution.

“Lot of issues raised before this court relate to the right of transgender persons to marry as per natural constitutional entitlement. We are of the considered view that issues here are resolved by five judges of this court under Article 145(3) of the constitution. We direct hearing of this case be posted before a constitution bench,” the court said in its order, according to Bar and Bench.

As per Article 145(3), a minimum of five judges must be on the bench if the matter pertains to important questions of law and interpretation of the constitution.

According to Indian Express, the court on Monday pointed out that the “submissions involve the interplay between constitutional rights on the one hand and specific legislative enactments”, including the Special Marriage Act and the Foreign Marriage Act, among others. Besides, it also involves adjudication on the issue of the right of transgender couples to marry as a natural incidence of their constitutional entitlements, the court said.

Earlier, on Sunday, March 12, the Union government had filed an affidavit before the court opposing the pleas seeking recognition of same-sex marriage. According to the government, same-sex marriages are not compatible with the concept of the “Indian family unit”, which, it argued, consists of “a husband, a wife, and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as father and the biological woman as mother”.

It had also said any interference with marriage between a biological man and biological woman “would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.

The government, in its affidavit, had asserted that petitioners cannot claim a fundamental right for same-sex marriage to be recognised despite the decriminalisation of Section 377. It instead asked the court to leave the matter to the parliament.

The bench had in January this year transferred all petitions seeking recognition of same-sex marriages, pending before several high courts, to itself.