NEW DELHI: The Supreme Court on Friday sought centre’s response pleas seeking solemnisation of same sex marriage under the Special Marriage Act, 1954.
Currently, Special Marriage Act provides civil form of marriage for couples who cannot marry under their personal law. It limits access to marriage of couples comprising one male and one female.
A bench of CJI DY Chandrachud and Justice Hima Kohli agreed to hear two pleas filed by a gay couple from Hyderabad who have been in a relationship for almost ten years and another couple who have been in a relationship for the last 17 years and have been raising two children together.
“Issue notice returnable in four weeks. Liberty to serve Central agency. Notice shall be issued to AG,” the bench said in its order.
Apprising the bench of the petitions that are pending before Kerala and Delhi HC seeking recognition of same sex marriage under the Special Marriage Act, Foreign Marriage Act and Hindu Marriage Act, Senior Advocate Neeraj Kishan Kaul apprised the bench of ASG’s statement of Ministry taking steps to transfer pleas to SC. “Petitions have been languishing for years and they (LGBTQ+ couples) have valuable rights. Every facet of their existence is affected,” Kaul added.
Terming the issues highlighted in the pleas as “live”, Senior Advocate Mukul Rohatgi said, “Its an important issue affecting the nation. These are sequels of Navtej Singh and Puttuswamy case. We’re only talking about Special Marriage Act. The act says marriage should be between two persons and doesn’t say that it’ll be a union of A & B.” IN Navtej SIngh’s case, SC had held that LGBTQ+ community possess the same human, fundamental and constitutional rights as other citizens. In Puttaswamy’s case, SC nine judge bench had held that Constitution protects non binary individuals and that protections under Articles 14, 15, 16, 19 & 21 cannot be restricted to biological sex of “male” or “female”.
Senior Advocate Maneka Guruswamy contended that the fundamental issue was, “how do I protect my family?”
Seeking recognition of their marriage, gay couple from Hyderabad had argued in the petition that non recognition of same sex marriage was discriminatory that struck at the root of the dignity and self fulfilment of LGBTQ+ couple. Relying on SCs ruling in Navtej Singh Johar’s case, the couple in their plea said, “Indian Supreme Court has always protected the rights of inter-caste and inter-faith couples to marry a person of their choice. Same sex marriage is a continuation of this constitutional journey.”
In the other plea, it was submitted that the right to marry a person of one’s choice is a fundamental right guaranteed under the Constitution to each person and has been recognised explicitly by this court. It was further argued that although the couple is raising two children together but they cannot have a legal relationship of parent and child with them since they cannot solemnise their marriage legally.
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