• The Supreme Court on Friday sought the government’s response to pleas to allow solemnisation of same-sex marriage under the Special Marriage Act.
  • The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
  • A Bench of Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli agreed to hear partners Supriya Chakraborty (Supriyo) and Abhay Dang, who said the non-recognition of same-sex marriage amounted to discrimination that struck at the root of dignity and self-fulfillment of LGBTQ+ couples.
  • A separate petition was also filed by ParthPhiroze Mehrotra and Uday Raj Anand.
  • The Bench issued separate notices to the Union of India and the Attorney-General and listed the case for hearing after four weeks. It transferred various pending issues before various High Courts, including in Kerala and Delhi, to itself. The government too had said in the High Courts that the issue should be taken up by the top court.
  • Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy and advocate Arundhati Katju argued that this was a sequel to the 2018 Constitution Bench judgment in the NavtejJohar case in which homosexuality was de-criminalised. “A plethora of living issues arise out of this case… Your Lordships have also upheld privacy as a constitutional right in the Puttaswamy case,” Mr. Rohatgi submitted.
  • The petitioners said the 1954 Act should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.
  • Rohatgi said the petition did not touch on the personal laws but only sought to make the 1954 Act gender-neutral. “The Act only says marriage should be between ‘two persons’. It does not say it is a union of A and B,” Mr. Rohatgi submitted.
  • Kaul said there were about 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy, etc, which was not available to the LGBTQ+ citizens. Ms. Guruswamy said the fundamental issue here is “how do I protect my family”.
  • “The Act is ultra vires the Constitution to the extent it discriminates between same-sex couples and opposite sex couples, denying same-sex couples both legal rights as well as the social recognition and status that flows from marriage… The Special Marriage Act of 1954 ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation,” the petition said.


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