Argument That Children Of Same Sex Marriage Will Be Impacted Incorrect: Supreme Court

The Supreme Court countered the argument that children of same-sex marriage might be impacted as their parents are homosexuals.

The Supreme Court bench led by CJI Chandrachud put forward that post-decriminalisation of 377, homosexual individuals are allowed to adopt a child.

Therefore, if the child is not impacted by the parent's queer nature when they are adopted individually, then this should not be an issue when two married queer individuals decide to adopt a child (should queer marriage be legalised).

Arguments Put Forward On The Issue Of Children Of Same Sex Marriage

The Centre opposed the validity of a same-sex marriage conveying that it views the Indian family as a heterosexual unit consisting of a man, woman, and child/ren.

It also conveyed that legalising same-sex marriages might be adversely impactful on the child's mental development in the formative years. But the question that arises here is that if children's mental growth is not impacted by heterosexual marriages by virtue of it being a norm then why should it be impacted by homosexual marriages if a precedent is set by the judiciary?

Since homosexuality has been decriminalised, children of homosexual individuals are currently only being bereft of enjoying parenthood as same-sex marriages are yet not legalised in India.

The Supreme Court bench asked that appeals for the constitutional validity of same-sex marriage be limited to the Special Marriage Act (SMA) to avoid delving into too many personal laws.

Day 2 of the Supreme Court hearing on same-sex marriage saw Advocate Rohtagi appeal for a gender-neutral reading of the SMA.

This can be accomplished by reading 'spouses' in place of husband and wife and 'persons' in place of man and woman.

Further countering the Centre's fresh appeal for involving the States and UTs the Supreme Court bench conveyed that their views need not be invited just because the subject falls in the concurrent list. Additionally, if the Centre had wished to lead with their views they could have done it five months back as the notice was issued then.

Sections 2b and 4 of the SMA dealing with prohibited relationships and marital age disparity have been challenged in case there is a gender-neutral reading of the SMA act.

The CJI has remarked that striking down the SMA would be adversely impactful for females as the SMA sets the minimum age for females to get married as 18. Therefore, the only scope to incorporate same-sex marriages in the SMA is a liberal statutory interpretation of it.

Suggested Read: CJI Chandrachud On Same Sex Marriage Hearing: ‘No Absolute Concept Of Man Or Woman’