Supreme Court considers legalising same-sex marriage, issues notice to Centre

The Supreme Court on Friday issued a notice to the government seeking response on a plea filed by a couple asking to legalise same-sex marriage in India. The plea demands that alliances between members of LGBTIQ+ (lesbian, gay, bisexual, trans, intersex and queer) community be legalised under the Special Marriage Act. 

The Special Marriage Act (1954) provides for civil marriage for Indian nationals irrespective of the religion, faith, race, social standing, identity, etc., of either party.

The plea, filed by a gay couple, asserted their fundamental right to marry any person of their choice and highlighted the absence of a legal framework which allowed members of the LGBTQ+ community to do so. The couple drew from previous landmark judgements passed by the SC such as Section 377 that decriminalised gay sex in 2018 or the Madras High Court judgement in 2019 that legitimised the marriage between a transwoman who identifies as a ‘woman’ and a cis-gendered man and vice versa–therefore legalising trans marriages. 

The plea delineated that the SC has previously ruled that members of the LGBTQ+ community hold the same human, fundamental and constitutional rights as other citizens and therefore possess the “inevitable” right to marry. 

Senior Advocate Mukul Rohatgi, appearing for the petitioners said that: “Ultimately this is a sequel to the judgement in Navtej Singh Johar [Section 377] These are live issues, not property issues. People are living, they are getting older and older. The impact is on succession, health, etc,” adding that this petition only pertains to the Special Marriage Act. “We have taken care not to touch matters of marriage which deal with religion, like Hindu Marriage Act. We are only talking about the Special Marriage Act. The Act starts by saying that you can have a marriage between two persons,” says Rohtagi.

The senior counsel as well as the petitioners have highlighted that the lack of a legal framework for same-sex marriage affects adoption rights, parental rights and liabilities. The petitioners mentioned that they have been together for 17 years and have been raising two children–however are not considered legal parents of the children under the Indian legal system as their marriage cannot be institutionalised.

“The Centre has rejected several requests for approval of same-sex marriage, invoking the principle of the ‘Indian family structure’. If same-sex marriage is recognised by the Supreme Court of India – it will be one of the proudest moments for this country,” reads a report by Gaysi Family.

In 2020, the Delhi High Court had heard a petition filed by a certain Mr. Abhijit Iyer – asking for the registration of LGBTQIA+ marriages under the Hindu Marriage Act. The court had however ruled that marriage is only permissible between a biological woman and man i.e., only heterosexual couples and that decriminalisation of gay sex holds no bearing to the legalisation of same-sex marriage as marriage falls under “legitimate interest of the state” and not just within the realm of the individual.

Similarly in 2021, the Delhi High Court had listed several petitions on same-sex marriage to be considered by the SC. The response stated: “Acceptance of marriage between two persons of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.”

Thus, this is one of the first petitions with regards to same-sex marriage to have been considered by the SC and moved to the Centre. 

The SC bench headed by CJI DY Chandrachud stated that the notice should be directed to the Attorney General of India in addition to the Union government. The court will hear the matter after four weeks.

The bench, also comprising Justice Hima Kohli pointed out that many similar petitions were pending before the Delhi and Kerala High Courts.