The issue of legal recognition for same-sex marriage comes up in the Supreme Court of India today, as a five-judge Constitution bench of the Supreme Court will hear a batch of petitions. The hearing comes with the backdrop of the Centre’s opposition to such recognition.
The bench comprises Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha. In its application submitted two days ago, the Centre had said that the campaign for legal recognition for same-sex marriage was “a mere urban elitist view for the purpose of social acceptance”.
The Centre’s application said that a decision by the Supreme Court in recognising the right of same-sex marriage “would mean a virtual judicial rewriting of an entire branch of law”.
The application said that “appropriate legislature” was the “proper authority” for such a legal change, and that this “appropriate legislature” would have to take into account “broader views and voice of all rural, semi-rural, and urban population” and other factors such as religious beliefs and customs governing marriage, instead of focusing only on “urban elitist views”.
What the petitioners want
Today’s Supreme Court hearing will take up 20 petitions. Also scheduled for the court’s attention are intervention pleas by individuals, organisations, and government entities.
Today’s listed petitions are filed by same-sex couples who seek legal recognition of their ‘marriage’ and by activists for same-sex rights.
The petitioners have sought directions from the Supreme Court for legal registration of their ‘marriage’ under the various laws that are in effect in India — Special Marriage Act, the Hindu Marriage Act, Muslim Marriage Act, Parsi Marriage Act, etc. Some of the petitions also seek recognition of the ‘marriage’ of transgender persons.
Some of the petitions not only want legal recognition of same-sex marriage or trans marriage but also the same rights of LGBTQI+ couples as heterosexual couples. These rights span inheritance of property, taxation, banking, adoption and other matters that are relevant to couples.
Striking down of ‘notice and objections’
Several petitioners have sought that the mandatory “notice and objections” provision under the Special Marriage Act and Foreigners Marriage Acts be struck down. Their petitions say that the “notice”, which makes it public knowledge who is marrying whom, and gives family members or members of society a chance to raise an objection, could endanger the queer couple’s relationship, or even their lives.
Read ‘spouse’, not ‘husband/wife’
Raising the questions about whether (or not) LGBTQI+ persons had the right to marry a person of their choice; and whether (or not) denying them marriage rights would violate their right to life, liberty, dignity, health, autonomy, and privacy, the petitioners have asked if the provisions of the Special Marriage Act, Foreigners Marriage Act, Hindu Marriage Act, and other personal laws could be made gender-neutral, by reading ‘spouse’ instead of ‘husband’ or ‘wife’.
