Supreme Court to hear same-sex marriage plea

NEW DELHI: The Supreme Court on Friday agreed to examine pleas seeking legal recognition of same-sex marriage under the Special Marriage Act as it issued notice to the Centre on the petition.

A bench of Chief Justice of India Dhananjay Y Chandrachud and justice Hima Kohli issued a notice to the Centre and attorney general on the petition.

The top court also noted that various pleas relating to samesex marriage issues are being heard in various high courts, including Kerala and Delhi. It also noted the Centre made a statement before the high court that the ministry was taking steps to transfer all pleas to the Supreme Court.

Two petitions have been filed, petition, the first by a couple that evoked India’s Special Marriage Act, a law that originally legalised interfaith unions. The couple drew on earlier landmark rulings in India, including one declaring privacy a fundamental right and another that decriminalized gay sex in 2018.

Appearing for one of the petitioners, senior advocate Mukul 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,”

THE PLEA EVOKES INDIA’S SPECIAL MARRIAGE ACT, WHICH LEGALISED INTERFAITH UNIONS, SEEKING TO MAKE IT GENDER-NEUTRAL

Mr. Rohatgi submitted.

The second petition raised the absence of a legal framework that allowed members of the LGBTQ+ community to marry any person of their choice.

According to the petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said, “the exercise of which ought to be insulated from the disdain of legislative and popular majorities.”

The petitioners further asserted their fundamental right to marry each other and prayed for appropriate directions from the court in doing so.

Both the petitioners, who are members of the LGBTQ+ community, submitted that the right to marry any person of one’s choice is a fundamental right guaranteed under the Constitution of India to every “person” and has been recognised explicitly by the Supreme Court.

They stressed on the top court’s ruling that held that members of the LGBTQ+ community have the same human, fundamental and constitutional rights as other citizens.

However, the legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to marry the person of their choice and enforce the fundamental right which has been guaranteed to them under our Constitution.

The petitioners submitted that this is violative of the fundamental rights guaranteed under Part III of the Constitution, including Articles 14, 15, 19(1)(a) and 21.

The present petition has been filed by the petitioners to assert for themselves, and for all members of the LGTBQ+ community, the fundamental right to marry person of their choice, irrespective of gender identity and sexual orientation.

The petitioners said that they have been in love with each other and have had a relationship with each other for the last seventeen years and are presently raising two children together, but unfortunately the fact that they cannot legally solemnise their marriage has resulted in a situation where both petitioners cannot have a legal relationship between parents and children with both of their kids.

THE PETITIONS SUBMIT THAT THE RIGHT TO MARRY A PERSON OF ONE’S CHOICE IS A FUNDAMENTAL RIGHT