Same-Sex Marriage Petitions: What Legal Developments Have Taken Place Till Now

The Supreme Court Bench comprising Chief  Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala observed on Monday that the Petitions seeking the recognition of Same- sex marriages should be transferred to a constitutional bench of five judges as per Article 145 (3) of the Constitution. The court was hearing a batch of petitions which sought to challenge the provision of personal laws including Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act as they fail to recognise same sex marriages.

Senior Advocate Menaka Guruswamy put forth before the court that Section 5 of the Hindu Marriage Act permits marriage between any two hindus.She also submitted that the replies being given by the Solicitor General are very much similar to the response Dr. B.R. Ambedkar got when he put forth the reformation of the Hindu Marriage through Hindu Code Bill by allowing marriage between individuals of different caste and or those from same gotra.

It was also put forth by the Solicitor General of India Tushar Mehta that this issue should be legislatively decided due to various reasons in which he specifically mentioned that the parliament will have to decide the psychology of a child who has seen either two men as parents or two women as parents and has not been reared by a father and a mother.

To this CJI DY Chandrachud remarked that the adopted child of a lesbian couple or a gay couple does not necessarily have to be lesbian only and teh child may or may not be so.

Centre’s Response:
The Apex court had sought the response from the centre in relation to two sets of petitions which can be enumerated as:

1) The petitions praying for transferring the same- sex petitions pending before the Delhi High to The Supreme Court.

2) The petitions praying for the right of marriage between gay couples and also sought for registration of those marriages under the Special Marriage Act.

The centre filed a 56 page affidavit on Sunday that is March 12 2023 where the firm stand against same sex marriages was maintained. The centre relied on the sacramental values of the marriage and said that marriage depends on age old customs , rituals and practices. Relying on this reasoning the affidavit said that if there has to be a change in this socially accepted relationship of marriage then it has to happen through the legislature and cannot come through the Supreme Court.

Other points raised by the centre were:

1)  The court had not legitimised the conduct of sexual intercourse between same sex individuals and had only decriminalised it.

2) Living together as partners cannot be comparable with the concept of a family unit.

3) Any obtrusion in the marriage laws framed by the parliament would cause imbalance in the personal laws and the accepted social values.

Transfer Of All Petitions to The Supreme Court:

Early on in the hearings the petitioners in the same-sex marriage petitioners had sought to transfer all the cases pending related to the matter before several high courts to the Apex court. The Supreme Court bench comprising Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala had thereafter clubbed all such petitions and transferred them to itself. This was done to prevent any confusion and to facilitate the case in a smooth manner. These petitions were pending before several high courts including the Delhi High Court.

Who are the Petitioners?

Partners Supriyo Chakraborty and Abhay Dang have filed one of the several petitions and another has been filed by Parth Phiroze Mehrotra and Uday Raj Anand.  

Remarks:

Section 5 in The Hindu Marriage Act, 1955

Conditions for a Hindu marriage: A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:

(i) neither party has a spouse living at the time of the marriage;

(ii) at the time of the marriage, neither party:

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity 

(iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of 5 [eighteen years] at the time of the marriage;

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two;

Next Hearing: April 18, 2023

CASE:SUPRIYO V. UNION OF INDIA

WP (C) NO. 1011/2022 PIL