Supreme Court To Pronounce Judgement In Same-Sex Marriage Case Tomorrow

The Supreme Court is set to deliver its judgment on the batch of petitions seeking legal recognition for queer marriages in India tomorrow (17.10.2023). A bench comprising Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha had started hearing the matter on April 18 and reserved judgement in the matter on May 11, 2023. With Justice Bhat set to retire on October 20, 2023, the judgement on marriage equality is expected to come out soon.

There are twenty petitions which will be decided by the bench, filed by various same-sex couples, transgender persons, and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 to the extent these legislations do not recognise non-heterosexual marriages. During the course of the hearings, the bench expressed that it will confine the issue only to the Special Marriage Act and will not touch personal laws.

A significant development which took place in the case was the willingness expressed by the Union Government - which had opposed the petitions on the ground that is a matter for the Parliament to decide - to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage. This was in response to a query raised by the Court if certain executive instructions could be issued to ensure that same-sex couples have access to welfare measures and social security - such as permission to open joint bank-accounts, to name partner as nominee in life insurance policies, PF, pension etc

The bench also mulled over whether a declaration of right to marry for same-sex couples could be issued, without interfering with the existing statutes. The petitioners advanced the argument that the words "husband" and "wife" in the Special Marriage Act be read in a gender neutral manner as "spouse" or "person". The Union Government opposed this by saying that the Special Marriage Act was enacted with an altogether different purpose in mind and when the same was passed in 1954, the legislature never contemplated brining homosexual couples under its ambit. The Centre also said that such an interpretation will disrupt various other legislations which deal with adoption, maintenance, surrogacy, succession, divorce etc.

The National Commission for the Protection of Child Rights intervened in the manner expressing concerns about allowing same-sex couples to adopt. On the other hand, the Delhi Commission for the Protection of Child Rights supported the petitions and backed the right of same-sex couples to adopt.

Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran KV Vishwanathan, Dr.Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover, Geeta Luthra, Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy, Manu Srinath etc., argued for the petitioners. Solicitor General of India Tushar Mehta appeared for the Union Government. Senior Advocate Rakesh Dwivedi argued for the State of Madhya Pradesh in opposition of the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.

Case Title: Supriyo v. Union of India | Writ Petition (Civil) No. 1011 of 2022 + connected matters