The Supreme Court of India is nearing the announcement of its verdict regarding a set of petitions advocating for the legal recognition of same-sex marriages in India. The bench presiding over this matter consists of Chief Justice DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli, and Justice PS Narasimha. They commenced hearing the case on April 18 of this year, with a reserved judgment delivered on May 11.
What Is Being Challenged?
On January 24, 2020, Nikesh and Sonu, a homosexual couple, initiated legal proceedings in the Kerala High Court to seek recognition of their marriage. The court granted their petition on January 27. The petition aimed to establish the civil rights of the LGBTQ community as integral components of fundamental human rights. It asserted that these rights had not been adequately addressed in the Supreme Court’s ruling regarding Section 377. The plea sought acknowledgement of their entitlement to same-sex marriages, adoption, surrogacy, IVF, and directives that would enable members of the LGBTQ community to openly serve in the army, navy, and air force.
In a similar vein, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani, and G. Oorvas, all members of the LGBTQIA+ community residing in Delhi, filed a case with the Delhi High Court on September 8, 2020, to secure recognition for their marriage. Additionally, on November 14, 2022, Supriya Chakraborty and Abhay Dang, another queer couple, submitted a plea to the Supreme Court of India, requesting acknowledgement of their marriage.
The bench is set to rule on a total of twenty petitions, which have been submitted by diverse groups, including same-sex couples, transgender individuals, and LGBTQIA+ advocates. These petitions collectively challenge the provisions of three marriage-related laws: the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969.
The challenge is focused on the aspect of these legislations that fails to acknowledge marriages involving non-heterosexual unions. Throughout the hearings, the bench made it clear that it intends to limit its examination solely to the Special Marriage Act and will not delve into the realm of personal laws.
Which Laws Are Exempt From the Judgment?
In May, the National Commission for Protection of Child Rights (NCPCR) took legal action by approaching the Supreme Court to oppose the legalization of same-sex marriages. The child rights organization expressed concern that children raised by same-sex couples might have a more restricted exposure to conventional gender role models. The commission argued that both the Hindu Marriage Act and the Juvenile Justice Act do not acknowledge adoption by same-sex couples. In its plea, the commission contended that “Allowing adoption to same-sex couples is akin to endangering the children,” but was opposed by statements from the governing body, according to Outlook India. However, the top court has made clear that it won’t go into these personal laws.
As India anticipates the Supreme Court’s decision regarding the legalization of same-sex marriage, a recent wedding between an LGBTQ couple in the northern state of Punjab has garnered significant attention, sparking both headlines and controversy for sticking to the traditional rituals associated with Sikhism.
Based on a LiveLaw report, with Justice Bhat scheduled to retire on October 20, it is anticipated that the decision on marriage equality will be released shortly.