New Delhi: The Supreme Court Friday sought response from the central government on two public interest litigations filed by same sex couples demanding recognition of same sex marriages under the Special Marriage Act 1954.
The notice was issued by a two judge bench of Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli to the central government and the Attorney General for India.
During the hearing, senior advocate Mukul Rohatgi, appearing for one of the petitioners, submitted that the issue is a “sequel” to the Navtej Singh Johar and Puttaswamy (right to privacy) judgments. In the Johar case, a five judge constitution bench had, in September 2018, struck down the colonial-era law that criminalised homosexuality and declared it unconstitutional.
“This is a living issue, not a property issue. Impact is on health, succession. We are only here talking about the Special Marriage Act,” Rohatgi argued.
Senior advocate Neeraj Kishan Kaul, appearing for the second petitioner, pointed out that the issue impacts basic rights like opening of joint bank accounts, gratuity, adoption, and surrogacy for same sex couples.
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‘Seen each other through sickness and health’
One of the petitions has been filed by Hyderabad-based couple Supriyo Chakraborty and Abhay Dang, who have been together for almost a decade. They had a commitment ceremony in Hyderabad in December last year, during which they exchanged rings and took vows. Their ‘marriage’ was touted as the first wedding of gay men in Telangana at the time.
Their petition in the Supreme Court now points out that despite this ceremony, they don’t enjoy the rights of a married couple. They have, therefore, relied on the apex court’s judgment in the Johar case, and have highlighted the SC’s emphasis on the right to marry a person of one’s choice.
The second petition has been filed by Parth Phiroze Mehrotra and Uday Raj, who have been together for the past 17 years, and have “seen each other through life’s ups and downs, sickness and health, through the best and through the worst”. According to their petition, the couple is also raising two children together. However, they now claim that because they cannot legally solemnise their marriage, they also cannot have a legal relationship as parents and with both their children.
They, therefore, assert, “If the petitioners, as a same sex couple, enjoyed access to the civil institution of marriage, they would not face untold practical difficulties, both vis-a-vis each other and their children. The denial of the fundamental right of marriage to persons like the petitioners is a complete violation of constitutional law.”
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Other pending petitions
Similar petitions are currently pending in the Delhi and Kerala High Courts, demanding recognition of same sex marriages under the Special Marriage Act, Foreign Marriage Act and the Hindu Marriage Act.
In September 2020, the central government, through Solicitor General Tushar Mehta, had opposed a petition demanding marriage rights for the gay community under the Hindu Marriage Act 1955 in the Delhi High Court. The government had then asserted that same sex marriages are neither a part of “our culture” nor the country’s law.
Last year, it had also told the high court that any changes to the existing laws on marriage to recognise same sex weddings would cause “a complete havoc with the delicate balance of personal laws in the country”.
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