The Supreme Court, on Tuesday, refused to legalise same-sex marriages in India. However, all the judges on the bench agreed to direct the Indian government to set up a committee to examine the rights of individuals in queer unions without legal recognition of the relationship of same-sex couples as “marriage”.
A division bench of Chief Justice of India (CJI) DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha had started hearing the case on April 18 with the verdict reserved for May 11, 2023. Justice Bhatt is scheduled to retire on October 20, 2023, so a decision on marriage equality is expected soon
There are twenty petitions filed by various same-sex couples, transgender persons and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, the Hindu Marriage Act 1955 and the Foreign Marriage Act 1969, which will be decided. The laws do not recognize non-heterosexual marriages. During the hearing, the division bench said that it would confine the issue only to the Special Marriage Act and would not touch personal laws.
The significant development that occurred in the case was the willingness expressed by the Central Government—which opposed the petitions on the grounds that it was a matter for Parliament to decide—to consider whether same-sex couples should be allowed to marry. Some rights may be provided under legal recognition in this form. This was in response to a question raised by the Court whether certain executive directions could be issued to ensure that same-sex couples have access to welfare measures and social security – such as the right to open joint bank accounts. Permission, Life Insurance Policy, PF, Pension etc. to name partner as nominee.
The division bench also considered whether a declaration of the right to marry for same-sex couples could be issued without interfering with existing laws. The petitioners argued that the words “husband” and “wife” in the Special Marriage Act should be read as “spouse” or “person” in a gender-neutral manner. The central government opposed it, saying that the Special Marriage Act was made with a completely different purpose in mind and that when it was passed in 1954, the legislature had never contemplated bringing same-sex couples within its ambit.The Center also said that such an interpretation would hamper various other laws, which relate to adoption, maintenance, surrogacy, inheritance, divorce etc.
The National Commission for Protection of Child Rights intervened, expressing concerns about allowing same-sex couples to adopt. On the other hand, the Delhi Commission for Protection of Child Rights supported the petitions and supported the right of gay couples to adopt.
On behalf of the petitioner, Senior Advocate Mukul Rohatgi, Dr. Abhishek Manu Singhvi, Raju Ramachandran KV Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover, Geeta Luthra, Advocate Arundhati Katju, Vrinda Grover, Karuna Nandi, Manu Srinath etc. presented his side.
Solicitor General of India Tushar Mehta appeared on behalf of the central government. Senior Advocate Rakesh Dwivedi argued on behalf of the State of Madhya Pradesh in opposition to the petitions. Senior lawyers Kapil Sibal and Arvind Datar also gave arguments opposing the petitions.
