Supreme Court to hear petitions on same-sex marriage on Friday

The Supreme Court had earlier issued notice in a batch of petitions seeking recognition of same-sex marriage in India.

Jal khambataUpdated: Tuesday, January 03, 2023, 04:39 PM IST
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The Supreme Court on Tuesday agreed to hear on Friday two petitions seeking seeking recognition to the same-sex marriage in India to be transferred from Delhi High Court and Kerala High Court.

The transfer petitions were mentioned by Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy before a bench comprising Chief Justice DY Chandrachud and Justice P S Narasimha.

Noting that the petitions relating to the same sex marriage are listed on Friday and wanted listing the transfer petitions along with them, Chief Justice of India agreed to list the transfer petitions along with the main matter on January 6.

Couples seeks recognition under Special Marriage Act

The Supreme Court had earlier issued notice in a batch of petitions seeking recognition of same-sex marriage in India. The batch included a PIL filed by Supriyo Chakiraborty and Abhay Dang. A couple for almost ten years, they recently had a commitment ceremony in December 2021, where their relationship was blessed by their parents, family and friends and now they want their marriage be recognised under the Special Marriage Act.

The batch of PILs also include one filed by Parth Phiroza Mehrotra and Uday Raj Anand, who have been in relationship for 17 years and raising two children together. Their case is that since they cannot legally solemnize their marriage, they cannot have the relationship of parent and child with both their children.

Another same-sex couple – an Indian national and a Citizen of the United States of America (USA), who married and registered their marriage in the USA in 2014 and now they have filed a PIL to seek it registered under the Hindu Marriage Act and Foreign Marriage Act 1969.

Homosexuality not Western concept, traces in Ancient Indian inscription: Petitioner

Senior advocate Anand Grover secured a notice on December 14. While tracing the history of same-sex marriage in India, the petition submits– "Works of scholars like Saleem Kidwai and Ruth Vanita tell us that Ancient Indian texts and inscriptions and paintings on temple walls that clearly show that homosexuality is not an aberration imported from the modern Europe or medieval West Asia, but in fact queerness had a large and looking presence in India. Only during them British rule, they were ciminalised."

The petition also noted the the same sex marriages are performed and recognised in about 32 countries. It highlighted various international conventions to which India is a signatory to assert its acceptance of the same-sex marriages universally under Article 16 of the Universal Declaration of Human Rights.

Petition argues that right to marry is a fundamental right

Though the right to marry is not recognised as a fundamental right under the Indian Constitution or any other statute, the petition claimed the Supreme Court has recognied it as a fundamental right through the variety of decisions. The judgment in Shafin Jahan vs Asokan K M was cited as an example.

The petition quotes CJI D Y Chandrachud in the judgment that "Deprivation of marital status is a matter of serious import and must be strictly in accordance with law...The right to marry a person of one's choice is integral part of Article 21 of the Constitution."

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