On 17th October, the Indian Supreme Court delivered a historic judgment on the question of recognition of Same Sex Marriage. The Indian Supreme Court refused to recognize the same sex marriage.
There was a bench of five judges, two judges Justice Dhananjay Yashwant Chandrachud who is also current CJI of India, and Justice Kishan Kaul gave their separate judgment in favor of Same Sex Marriage, but, the other three Judges, Justice Ravindra Bhatt, Justice Narsimha, and Justice Hima kohli pronounced their judgments against the recognition of Same Sex Marriage.
In this case, there were 21 Petitions, the grievance of the petitioners (who were members of the LGBTQIA+ community) was not that society discriminates against them in an informal (and invisible) manner. That is a secondary but an equally important stage of how discrimination pans out against a marginalised class.
Read here the submissions of lawyers from Petitioners side
Read here the submissions of lawyers against Same-Sex Marriage
Reliefs sought by the Petitioners
The petitioners made certain general prayers, in addition to the prayers specific to the facts of their case. The general reliefs sought are summarized below. The petitioners sought the Court declare that:
a. LGBTQ persons have a right to marry a person of their choice regardless of religion, gender and sexual orientation;
b. The SMA is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as it does not provide for the solemnization of marriage between same-sex, gender non-conforming or LGBTQ couples;
c. The SMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation;
d. The words “husband” and “wife” as well as any other gender-specific term in the SMA ought to be substituted by the word “party” or “spouse”;
e. All rights, entitlements and benefits associated with the solemnization and registration of marriage under the SMA are applicable to LGBTQ persons;
f. Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA which contain requirements regarding the publication of a public notice of a proposed marriage and the domicile of the couple, and which empower the Marriage Registrar to receive and decide objections to the proposed marriage are violative of Articles 14, 15, 19 and 21 of the Constitution;
g. The validity of marriages already solemnized or registered under the SMA will not be jeopardized if one spouse transitions to their self-determined gender identity;
h. The word “spouse” in Section 7A(1)(d) of the Citizenship Act is gender-neutral and is applicable to all spouses of foreign origin regardless of sex or sexual orientation;
i. LGBTQ couples have a right to register their marriages under Section 5 of the HMA and under Section 17 of the FMA if they are lawfully married in a foreign jurisdiction and at least one of them is an Indian citizen;
j. The FMA violates Articles 14, 15, 19 and 21 of the Constitution of India and is unconstitutional and void insofar as it does not provide for the registration of marriages between same-sex or gender non-conforming or LGBTQ couples;
k. The FMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation;
l. The words “bride” and “bridegroom” as well as any other gender-specific term in the FMA have to be substituted by the word “party” or “spouse”;
m. All rights, entitlements, and benefits associated with the solemnization and registration of marriage under the FMA are applicable to LGBTQ persons;
n. Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption Regulations are unconstitutional and ultra vires the JJ Act insofar as they exclude LGBTQ couples from joint adoption;
o. The words “married couple” and “marital relationship” used in Regulations 5(2)(a) and 5(3) of the Adoption Regulations encompass LGBTQ couples married under foreign laws;
p. The phrases “male applicant” and “female applicant” are substituted by the phrases “Prospective Adoptive Parent 1” and “Prospective Adoptive Parent 2 (in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption Regulations;
q. Section 5 of the HMA does not distinguish between homosexual and heterosexual couples and the former have a right to marry under the HMA;
r. LGBTQ persons have a constitutional right to a “chosen family” in lieu of next of kin under all laws as an intrinsic part of their right to a dignified life under Article 21;
s. An unmarried person can nominate “any person(s)” to act as their nominee or next of kin, irrespective of whether such person is a “guardian, close relative or family member,” with respect to healthcare decisions in case of incapacity such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person;
t. The State Governments must apply all preventative, remedial, protective, and punitive measures including the establishment of safe houses similar to the Garima Greh welfare scheme, in order to guarantee the safety and security of all individuals irrespective of gender identity and sexual orientation;
u. The provisions of matrimonial statutes including the rules and regulations framed thereunder, to the extent that they are construed as requiring one “male” or “bridegroom” and one “female” or “bride” for the solemnization of marriage be read as neutral as to gender identity and sexual orientation; and
v. All marriages between couples in which either one or both partners are transgender or gender non-conforming or who otherwise do not identify with the sex assigned to them at birth, may be solemnized under matrimonial statutes regardless of their gender identity and sexual orientation.
In addition, the petitioners have sought directions to the Union Government, the State Governments, and district and police authorities to adopt and follow a protocol in cases which concern adult, consenting LGBTQ persons who require protection from their families, regardless of whether such persons are married.
Reference
Supriyo @ Supriya Chakraborty & Others. v. Union of India (2023)