Supreme Court referred petitions related to same-sex marriage to the Constitution bench

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Today, the Supreme Court of India was hearing the petitions seeking recognition of same-sex marriage. The matter was presented before the bench comprising Chief Justice of India DY ChandrachudJustice P.S. Narasimha and Justice J.B. Pardiwala. The bench directed the petitions to larger bench (five-judge constitution bench) and listed the matter on April 18, 2023. These petitions were challenging the provisions of the Special Marriage Act, the Foreign Marriage Act and the Hindu Marriage Act, as they do not recognize same-sex marriage. While hearing the matter, the top Court observed that, “We are of the view that it would be appropriate if the issues raised are resolved by the bench of five judges of this court with due regard to Article 145(3) of the Constitution. Thus, we direct it to be placed before a constitution bench.”

Initially, the writ petition was filed before the Supreme Court on 14th November 2022 by two same-sex couples seeking legal recognition of same-sex marriages in India. Supriyo Chakraborty and Abhay Dang first filed the petition which was followed by Parth Phiroze Merhotra and Uday Raj Anand. The petitions were regarding the constitutionality of the Special Marriage Act, 1954, and Section 4(c) of the Act was argued as it recognizes marriage between a male and female only. This means it denies all the matrimonial benefits for same-sex couples; therefore, the petitioners seek to declare the Special Marriage Act’s Section 4(c), unconstitutional. The petitions also highlighted that due to the non-recognition of same-sex marriages, various rights such as the right to equality, the right to dignity, and the right to freedom of expression were violated. An order was passed on November 25 (the same year) directing the Union to respond to petitions by the Supreme Court bench comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli. 

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Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy, on 3rd January 2023, asked the top Court bench including CJI DY Chandrachud and Justice P.S. Narasimha to transfer two similar writ petitions related to same-sex marriages pending before the HC of Kerala and Delhi. The matter was then posted for hearing on January 6, 2023, after listing the transfer petitions along with the main petition. Hearing the matter on 6th January, a three-judge bench of the SC itself transferred nine similar petitions to the top Court. These petitions were pending before the High Court of Kerala and Delhi. The cause title of the petitions include Nikesh PP & Anr. v. UOI & Anr., Abhijit Iyer Mitra & Ors. v. UOI & Anr., Dr. Kavita Arora & Anr. v. UOI & Anr., Joydeep Sengupta & Ors. v. Ministry of Home Affairs & Ors., Zainab Patel v. UOI & Anr., Vaibhav Jain & Anr. v. UOI & Anr., Mellissa Ferrier & Anr. v. UOI & Ors., Udit Sood & Ors. v. UOI & Anr., and Nibedita Dutta & Anr. v. UOI & Anr. 

On 6th January 2023, an order was passed to file a set of written submissions on behalf of the petitioners and UOI and listed the matter to March 13, 2023 (today). Counsel appearing on behalf of the petitioners and the Union of India, Ms. Arundhati Katju and Mr. Kanu Agrawal respectively, were directed to prepare a common compilation of written submissions, legislation, documents, and precedents on which reliance would be placed during the course of the hearing.

The Supreme Court of India briefly heard the matter to have an overview regarding the issues involved. While opposing the petitions, the centre told the bench that “legislative understanding of marriage in the Indian statutory and personal law regime is a marriage between a biological man and woman. Any interference would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values.” In an argument, Dr AM Singhvi (appearing for petitioners) argued that, “One is philosophical proposition- “Right to love makes us human.” It should be extended in equal terms. You can extend it only on equal terms only if your lordships reads down the Special Marriage Act and other Acts. It has to be read in such a way that terms such as man, woman are done away with.” Various previous orders delivered in judgments of Deepika Singh v. Central Administrative Tribunal, KS Puttaswamy v. Union of India and Navtej Singh Johar v. Union of India were addressed. 

In context with this matter, Additional Solicitor General Mehta stated that recognition of same-sex marriage would result in the rise of various other rights; therefore it is a call of the Parliament to decide after considering the view points of society. He further stated that “Parliament will have to see psychology of a child who has not been reared by a father and a mother- these are the issues. The parliament will have to debate and take a call on whether in view of our ethos, this can be done.” To this CJI interrupted and said, “Mr Solicitor General, the adopted child of a lesbian or a gay couple need not necessarily be a lesbian or gay. The child may or may not be..” After briefly hearing the petitions, CJI listed the case on April 18 and referred it to a Constitution bench. 

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