Sunday, June 4, 2023

Supreme Court transfers all same-sex marriage petitions before High Courts to itself

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The Supreme Court on Friday has finally transferred all the petitions which asked for the extension of the right to marry for the members of the LGBTQIA+ community which were long pending before various High Courts to the Apex Court itself.

A Bench comprising of Chief Justice of India DY Chandrachud and Justice PS Narasimha and  Justice JB Pardiwala directed that as there are several batches of petitions which remain pending before Delhi, Kerala and Gujarat High Courts involving the same question, we are of the view that they should be transferred and decided by this Court. We direct that all writ petitions shall stand transferred to this Court.”

The Court also said that as a means for facilitation, any petitioner who cannot engage a counsel can appear virtually and advance their submissions.

The matter will now be heard on March 13, after all the parties submit a written written application.

Advocate Arundhati Katju has been appointed as the nodal counsel for the petitioners, and Advocate Kanu Agrawal will be the nodal counsel for the Central government.

Senior Advocate Mukul Rohatgi who appeared for one of the petitioners, said that matters pending before the High Courts should be transferred to the apex court and heard together.

CJI Chandrachud asked if all the matters collated earlier governed by transfers here? If those petitioners are not here, can we transfer them here.”

The Solicitor General Tushar Mehta then suggested that as the matter was good for hearing before Delhi High Court. If hearing is awaited then you can have benefit of Delhi High Court judgment.”

The CJI said,we will transfer all petitions before the High Courts (to the Supreme Court). Any petitioner who wants to appear virtually can appear virtually make any point, we will hear them.

Another petition filed by gay couple Parth Phiroze Mehrotra and Uday Raj said that non-recognition of same-sex marriages is violative of the right to quality under Article 14 and the right to life under Article 21 of the Constitution.

The petitioners couple has sought a declaration to the effect that LGBTQIA+ community have the same rights to marriage as heterosexual counterparts.

The plea by the couple stated that the denying them the same rights is violative of the rights guaranteed under Articles 14 (equality), 19 (freedom), and 21(life and liberty) of the Constitution of India.

As per the plea, one of the petitioners is Indian who got married to an American national in 2010 , the marriage was registered in the United States of America.

The couple then wanted to get their marriage registered under the Hindu Marriage Act but the same was refused by the registrar.

The couple then approached the Indian Embassy in Washington DC for registering their marriage under the Foreign Marriage Act.

After they waited for months, the request was denied, and the petitioners claimed that they were ill-treated by the authorities.

In the plea, the petitioners have submitted that the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969 ought to be read liberally to apply to marriages between members of the LGBTQIA+ community, as they do to their cisgender and heterosexual counterparts.

The plea contended that while doing so there was a violation of the Petitioners’ rights under Articles, 14, 15, 19 and 21 which the Supreme Court in Navtej Shingh Johar v. Union of India (supra) had held are guaranteed to LGBT and non-LGBT Indians with equal force.

The plea further says that over the years the concept of marriage has become more inclusive instead of merely being a union only between heterosexual persons.

The plea states that same-sex marriage will not harm traditional families and allowing same-sex marriage in no way interferes with procreation or child-rearing within opposite-sex marriage, but it does harm same-sex couples and their children by denying them legal benefits, financial security, and making child-rearing more difficult.

The plea states its irritation over the Indian consulate for not having registering the marriage of the Petitioners.

Moreover, it is contended that denying the petitioners the right to marry under the Hindu Marriage Act is violative of Section 5 of the Act.

The petition has been filed through advocate Nupur Kumar and drawn by advocates Hamza Lakdawala and Rohin Bhatt.

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