New Delhi: The petitioners, who have approached the Supreme Court with a plea to legalize same-sex marriages, on Monday took strong objection to the Centre’s contention that Parliament alone should be allowed to debate the matter.
The government had argued that same-sex marriage would affect a number of ancillary issues, such as the psychology of the child brought up by the same-sex couple. Advocate Arundhati Katju, appearing for one of the petitioners, termed the statement as “very derogatory”. It barred Solicitor General Tushar Mehta – who reiterated the government’s stand in an affidavit filed on Sunday – and said that several petitioners before the court had adopted children and were taking care of them.
Katju’s claim prompted Chief Justice of India DY Chandrachud to remark that adopted children of gay or lesbian couples do not “necessarily” be gay or gay himself.
The counsel further differed with Mehta’s view that in the 2018 judgment Navtej Johar The union of two persons belonging to the same sex was not recognized as marriage in the case. Katju argued that the Solicitor General’s interpretation was wrong.
The Navtej Johar judgment decriminalized gay sex in India by reading down Section 377 of the Indian Penal Code (IPC) to the extent that it permitted a consensual partnership between two adults of the same sex.
Senior advocate Niraj Kishan Kaul said that in the Navtej Johar case, the constitution bench had included the right to marriage, procreation and sexual orientation. He said that the petitioners have relied upon this judgment to argue their case.
Special Marriage Act ‘not limited to heterosexual marriage’
Kaul also mentioned 2017 puttaswamy Judgment, which declared the right to privacy as a fundamental right. He said that the rights of same-sex couples that have been recognized “are beyond pedantic interpretation to be given to the Special Marriage Act”.
He refuted Mehta’s claim that several sections of other laws may be rendered ineffective if same-sex marriage is allowed. Mehta had said that many existing laws, including the Indian Penal Code, recognize marriage as being between a biological male and a biological female.
However, Kaul read the Special Marriage Act to show that the law – otherwise invoked by interfaith couples to tie the knot – does not limit the implementation of marriage between a woman and a man. He highlighted that the Act refers only to “marriage between two persons” who are capable of giving valid consent. He said the law only states the age of consent for men and women to be 21 and 18, respectively.
Mehta once again clarified that the apex court has already upheld the right to love and express it and no one is interfering in it. “But the court said that this should not be construed to mean that it includes the right to marry, and the court was careful in doing so,” he said.
The law officer also submitted that marriage is not a contract only for Hindus, although it may be so in Muslim law.
,In Islam also this happens between a biological male and a biological female. The moment marriage as a recognized institution comes between (people) of the same sex, (a) the question will come up on adoption. Parliament has to check and see the will of the people. The psychology of the child has to be examined whether he can be brought up in this way. Parliament will factor in the social ethos,” the Solicitor General said.
Mehta’s submission drew a sharp reaction from Katju, who intervened and expressed concern over the law officer’s statement.
The solicitor, however, rejected the notion that the government was attempting to stigmatize homosexual relationships. He said the only issue before the court is whether such relations can be protected by the government. He argued that Parliament was the right forum to determine this.
(Edited by Rohan Manoj)