Supreme Court seeks response on pleas to legalise gay marriages

New Delhi, November 25

The Supreme Court on Friday issued notices to the Centre and the Attorney General on two petitions filed by gay couples seeking recognition for same-sex marriages under the Special Marriage Act, 1954.

Asking the Centre and Attorney General R Venkataramani to respond to the two petitions, a Bench led by Chief Justice of India DY Chandrachud posted the matter for further hearing after four weeks.

The petitions came more than four years after a five-judge Constitution Bench in 2018 decriminalised consensual homosexuals acts in private by reading down the 158-year-old colonial law under Section 377 of the Indian Penal Code which criminalised such an act as “unnatural sex”.

“This is a living issue… not a property issue. Impact is on health, succession. We are only here talking about the Special Marriage Act,” senior counsel Mukul Rohatgi told the Bench on behalf of the petitioners. The issue was a sequel to Navtej Singh Johar (decriminalisation of gay sex) and the Puttaswamy (right to privacy) verdicts, he said.

Another senior counsel Neeraj Kishan Kaul drew the court’s attention to the Centre’s submission before the Kerala High Court that it was taking steps to have all the cases transferred to the Supreme Court. The issue raised in the petitions affected the basic rights such as adoption, surrogacy of same-sex couples and even the opening of joint accounts in banks, Kaul submitted.

The first petition was filed by Supriyo Chakraborty and Abhay Dang – a gay couple from Hyderabad – who contended that the right to marry a person of one’s choice should extend to LGBTQ+ citizens. They said despite having a commitment ceremony attended by their parents, family and friends in December 2021, they did not enjoy the rights of a married couple.

Citing the Supreme Court’s historic verdict in the Puttaswamy case which declared the right to privacy a fundamental right, they submitted that LGBTQ+ persons enjoyed the right to equality, dignity and privacy guaranteed under the Constitution on the same footing as all other citizens.

The second petition by Parth Phiroze Mehrotra and Uday Raj – another gay couple in a 17-year-old relationship – contended that that non-recognition of same-sex marriages violated their right to equality and right to life and personal liberty guaranteed under Article 14 and Article 21 of the Constitution, respectively. Though Section 4 of the Special Marriage Act permitted any two persons to solemnise a marriage, subsequent conditions in Sub-Section (c) restricted its application only to males and females, the petitioners said, seeking rectification of the anomaly. — TNS

Petitions by 2 couples

• In separate pleas, two gay couples have sought enforcement of their right to marry and a direction to the authorities to register their marriage under the Special Marriage Act
• A Bench headed by CJI Chandrachud, who was also part of the Constitution Bench which in 2018 decriminalised consensual gay sex, asked Centre to respond in 4 weeks

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