Hindustan Times (Chandigarh)

SC seeks govt response on same-sex marriage pleas

- Utkarsh Anand

26, 2022

NEW DELHI: Four years after it decriminal­ised homosexual­ity between consenting adults, affirming sexual autonomy as a basic right of individual­s, the Supreme Court on Friday sought the Centre’s response on a clutch of petitions demanding legal recognitio­n to same-sex marriages under the Special Marriage Act (SMA), and requested attorney general R Venkataram­ani to assist in the matter.

A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachu­d, issued notice to the Centre asking for a reply within four weeks on the petitions which have also sought statutory recognitio­n for the members of the LGTBQ+ community to marry the person of their choice.

Even as a bunch of cases on this issue remains pending before different high courts, the bench was persuaded to admit the matter in view of a statement made by the Centre recently before the Kerala high court that the ministry concerned was taking steps to get all similar cases transferre­d to the Supreme Court.

“Issue notice, returnable in four weeks. Notice shall also be issued to the learned Attorney General,” the bench, which also comprised justice Hima Kohli, said in its brief order.

According to global NGO Human Rights Watch, same sex marriages are legal in at least 30 countries, including the United States, Australia, Canada and France.

While issuing the notice, the court took note of the arguments made by petitioner­s’ lawyers, senior counsel Neeraj Kishan Kaul, Mukul Rohatgi and Maneka Guruswamy, that the issue needs an authoritat­ive determinat­ion by the highest court of the land, which has guided the jurisprude­nce on the subject through its landmark judgments decriminal­ising homosexual­ity and granting privy a status of fundamenta­l right.

The lawyers pointed out that incidental­ly, both the judgments had justice Chandrachu­d as one of the authors.

“These people have valuable constituti­onal rights. Various proceeding­s are at various stages before different high courts, prolonging their attainment of the rights so affirmativ­ely highlighte­d by my lordship’s judgments in Navtej Singh Johar (decriminal­ising homosexual­ity) and Puttaswamy (privacy),” Kaul told the bench, as he opened the arguments on behalf of Supriyo Chakrabort­y and Abhay Dang. Chakrabort­y and Dang are two gay men living in Hyderabad, who have asserted in their petition that the right to marry a person of one’s choice should extend to LGBTQ+ citizens.

Rohatgi, appearing for Parth Phiroze Mehrotra and Uday Raj Anand, implored the bench to add a sequel to the apex court’s previous judgments ratifying the need of the laws to respect personal liberty in matters of who people want to be with.

“These are live issues. People are getting older. Issues like succession, inheritanc­e, organ donation etc are in limbo. We have made sure that the case is not argued on the basis of religion and that’s why we have asked for a recognitio­n under the Special Marriage Act. This law does not say that the union had to be between A and B. It is too important a matter to brook any delay,” Rohatgi argued.

Guruswamy, also representi­ng one of these petitioner­s, complained that a couple cannot protect the family, and matters like adoption, opening a joint bank account or admission of children remain uncertain on account of failure of the law to recognise same sex unions.

In their petition filed through Karanjawal­a & Co, Mehrotra and Anand said they have been in a relationsh­ip for 17 years. The petitions added they are presently raising two children together, but since they cannot legally solemnise their marriage, they cannot have a legal relationsh­ip of parent and child with both their children. They pray that the Special Marriage Act, which was meant to be a secular legislatio­n for institutio­n of marriage, be made gender-neutral by reading down any gender or sexuality-based restrictio­ns.

In its affidavit filed before the Delhi high court in 2021 in a similar case, the Union government strongly opposed the validation of same-sex marital unions, underlinin­g that a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children.

 ?? ?? A bench headed by the CJI asked the Centre for a reply within four weeks.
A bench headed by the CJI asked the Centre for a reply within four weeks.

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