On pleas seeking registration of same-sex marriages under Special Marriage Act, Supreme Court issues notice to Centre

The Supreme Court on Friday issued notice to the Centre and Attorney General R Venkataramani on two pleas by gay couples seeking a direction that their marriage be recognised under the Special Marriage Act, 1954. the matter was heard by a two-judge bench, comprising Chief Justice of India DY Chandrachud and Justice Hima Kohli.

“Issue notice returnable in four weeks. Liberty to serve the central agency. Notice be also issued to the Attorney General for India,” the bench said. 

The pleas sought direction seeking recognition of the marriage of two gay couples under the the Special Marriage Act.

One plea was filed by gay couple Supriyo Chakraborty and Abhay Dang who live in Hyderabad. The second plea was filed by gay couple Parth Phiroze Mehrotra and Uday Raj.

They seek a direction that the right to marry a person of one’s choice be extended to persons belonging to LGBTQ (lesbian, gay, bisexual, and transgender and Queer).

The plea said that non-recognition of same-sex marriages is violative of right to equality and right to life under articles 14 and 21 of the Constitution.

Appearing for one of the petitioners, Senior Advocate Mukul Rohatgi said that they are not touching any religion and they are only seeking recognition under the Special Marriage Act.

Meanwhile, one of the petitions 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 each other and prayed for appropriate directions from this Court in doing so. The Public Interest Litigation was filed under Article 32 of the Constitution of India by the petitioners and was in the interest of the LGBTQ+ community. 

Both the petitioners, who are members of the LGBTQ+ community, submitted that the right to 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 this Court.They stressed on top court’s ruling that had 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 solemnize their marriage has resulted in a situation where both petitioners cannot have a legal relationship between parents and children with both of their kids.

One of the petitioners was represented by Senior Advocate Mukul Rohatgi and Saurabh Kirpal briefed by a team from Karanjawala & Co. Advocates including Principal Associate Tahira Karanjawala, along with Niharika Karanjawala, Vardaan Wanchoo, Shreyas Maheshwari and Ritwik Mohapatra. 

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