A five-judge bench headed by the Chief Justice of India (CJI) DY Chandrachud will hear a batch of petitions seeking marriage equality for LGBTQIA+ persons on April 18. A bench headed by the CJI and comprising justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha will be hearing the petitions. The Supreme Court, on March 13, while transferring the petitions to a Constitution bench said that the petitioners have sought the right of marriage not only relying upon legal precedents, but also by asserting broader constitutional entitlements around the rights to life and dignity embodied in the preamble and Indian Constitution. The bench said that it will invoke Article 145 (3) of the Constitution and have this matter decided by a Constitution bench, comprising five judges.
Solicitor General Tushar Mehta, representing the Union government, had contended before the court that the right to love or right to express one's love irrespective of gender of the other person is completely different from what the court would find the mechanism to give recognition or to give a sanctity by way of an institution called marriage. Mehta had stressed that freedom of choice has already been recognised by the apex court and no one was interfering with those rights, but conferring the right of marriage fell in the exclusive domain of the legislature.
Mehta had further contended that if marriage is recognised between the same sex, the question will be of adoption, as the child would see either two men or two women as parents, and not be reared by a father and a mother. He added that the Parliament will then have to debate and take a call, in view of societal ethos and several other factors, whether same-sex marriage needs to be recognised. At this juncture, the Chief Justice had told Mehta, "The adopted child of a lesbian couple or a gay couple does not have to be necessarily a lesbian or a gay. It depends on the child, may or may not..."
The Union government, in an affidavit, contended that legal validation of same-sex marriage will cause "complete havoc" with the delicate balance of personal laws in the country and in accepted societal values. The Union government also stressed that legislative policy recognises marriage as a bond only between a biological man and a biological woman. It also said that living together as partners and having sexual relationship by same-sex individuals, which is decriminalised now, is not comparable to the Indian family unit - a husband, a wife, and children born out of the union - while opposing pleas seeking recognition of same-sex marriage. It stressed that same-sex marriage is not in conformity with societal morality or Indian ethos.
In the affidavit, the Union government said that the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation, it said.
The Union government's response came on a batch of petitions challenging certain provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws as unconstitutional on the ground that they deny same-sex couples the right to marry or alternatively to read these provisions broadly so as to include same-sex marriage.