The Supreme Court, on Friday, November 25, issued notices to the Attorney General of India R Venkataramani, as well as the union government, while hearing two Public Interest Litigations (PILs) filed by gay couples, who sought recognition of same-sex marriage under the Special Marriage Act. The petitions were heard by a bench of Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli. The notices are to be returned within four weeks.
The Supreme Court bench heard the brief submissions of senior advocate Mukul Rohatgi, appearing for the petitioners, before issuing the notices on the pleas. "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.
One plea was filed by gay couple Supriyo Chakraborty and Abhay Dang who live in Hyderabad. They sought a direction that the right to marry a person of one’s choice be extended to persons belonging to the LGBTQIA+ community. Supriyo and Abhay have been a couple for almost a decade.
The plea said that non-recognition of same-sex marriage is violative of the right to equality and right to life under articles 14 and 21 of the Constitution. A five-judge Constitution bench of the Supreme Court in 2018 had unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex.
The second PIL was filed by Parth Phiroze Mehrotra and Uday Raj Anand who have been in a relationship for the past 17 years. The couple, who are also raising two children, say that they cannot legally solemnise their marriage and this has prevented them from having the legal relationship of parents with their children.
Their plea states that even though Section 4 of the Special Marriage Act permits any two individuals to solemnise their marriage, sub-section (c) limits this to only a man and a woman, which is violative of the fundamental rights of LGBTQI+ individuals. They added that the law must be made gender-neutral by removing any restrictions on gender and sexualities.
It is to be noted that there are nine petitions pending before the Delhi High Court and the Kerala High Court seeking recognition of same-sex marriage under three acts: Special Marriage Act, Foreign Marriage Act and Hindu Marriage Act.
(With PTI inputs)