Same-sex marriage: Supreme Court clubs, transfers to itself all pleas pending before different high courts

Tribune News Service

Satya Prakash

New Delhi, January 6

The Supreme Court on Friday transferred to itself all petitions seeking legal recognition to same-sex marriages pending in various high courts across India.

“Since several petitions are pending before Delhi, Kerala and Gujarat high courts on the same question, we are of the view that they should be transferred and decided by this court. We direct that all writ petitions shall stand transferred to this court,” a three-judge Bench led by CJI DY Chandrachud said.

Asking the Centre to file a consolidated response to the petitions in six weeks, the top court posted the matter for further directions on March 13 when all the petitions would be taken up together.

The Bench -- which also included Justice PS Narasimha and Justice JB Pardiwala -- asked the petitioners to file a common set of written submission. Similarly, one set will be filed by the respondent i.e the Centre, it added.

The Bench nominated advocates Arundhati Katju and Kanu Agrawal as nodal counsel for the petitioners and the Centre, respectively.

“To obviate any difficulty to a petitioner who cannot engage a counsel or travel to Delhi, all the petitioners are provided liberty to appear on virtual platform and advance their submissions. Link to be provided to any who ask for the same,” the top court ordered.

The petitioners were represented by a battery of senior advocates, including Mukul Rohatgi, Neeraj Kishan Kaul, Anand Grover and others while Solicitor General Tushar Mehta appeared for the Centre.

The Supreme Court had on December 14, 2022 issued notice to the Government on a petition by a same-sex couple married in the US seeking legal recognition of their marriage in India.

The petitioners -- an Indian and a US citizen who got married in the US in 2010 and registered their marriage over there – complained that the Indian authorities were not registering their marriage under the Foreign Marriage Act, 1969.

They sought a declaration that persons belonging to the LGBTQIA+ community have the same right to marriage as their heterosexual counterparts. Denial of such a right violated their rights guaranteed under Articles 14 (equality), 19 (freedom), and 21 (life and liberty) of the Constitution, they contended.

CJI Chandrachud-led Bench had also issued notice to the Centre to two separate petitions seeking transfer of cases filed by filed by Kavita Arora and Nibedita Dutta in the Delhi High Court on recognition to same-sex marriages to the top court after senior advocate Menaka Guruswamy had submitted that the petitions related to fundamental right to equality.

Earlier, the Supreme Court had on November 25 last year issued notice 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.

Though Section 4 of the Special Marriage Act permitted any two persons to solemnize a marriage, subsequent conditions in sub-Section (c) restricted its application only to males and females, the petitioners said, seeking rectification of the anomaly.

The petitions came more than four years after a five-judge Constitution Bench de-criminalised 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 act as “unnatural sex”.

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