The Supreme Court will deliver its verdict on whether same-sex marriages should be legally recognised in India on Tuesday.

The Constitution Bench of Chief Justice of India (CJI) D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha, after conducting a marathon 10-day hearing, had reserved its verdict on May 11.

The Apex Court began hearing the 20 petitions on the matter on April 18. 

The pleas were 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 that these legislations did not recognise non-heterosexual marriages.

During one of the hearings, the Apex Court had observed that it will confine the issue only to the Special Marriage Act and will not touch personal laws. 

The Union of India, which was a party to the case, had initially challenged the maintainability of the petitions on the grounds that the issue fell in the legislative domain.

However later, it agreed to confer certain rights to the couples of same gender, which were short of legal recognition as marriage. 

The Apex Court had asked the Central government whether certain executive instructions could be issued to ensure that same-sex couples had access to welfare measures and social security such as granting them permission to open joint bank accounts and name their partner as nominee in life insurance policies, PF and pension.

The Constitution Bench had further asked the Union of India whether a declaration of right to marry for same-sex couples could be issued, without interfering with the existing statutes. 

The counsels for the petitioners had sought replacement of words ‘husband’ and ‘wife’ in the Special Marriage Act in a gender neutral manner as ‘spouse’ or ‘person’.

The Union government opposed the argument, stating 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 bringing homosexual couples under its ambit.

The Central government also said that such an interpretation would disrupt various other legislations which dealt with adoption, maintenance, surrogacy, succession and divorce.

The National Commission for the Protection of Child Rights has recently intervened in the matter, expressing concerns about allowing same-sex couples to adopt a child. 

The Delhi Commission for the Protection of Child Rights, on the other hand, supported the petitions and backed the right of same-sex couples to adopt.

The petitioners were represented by Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran K.V. Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover and Geeta Luthra, along with Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy and Manu Srinath. 

Solicitor General Tushar Mehta appeared for the Union government, while Senior Advocate Rakesh Dwivedi argued for the state of Madhya Pradesh, opposing the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.

(Case title: Supriyo and Anr vs Union of India)

The Supreme Court on Thursday reserved its verdict on a batch of petitions seeking legal recognition for same-sex marriages, after hearing the various parties in the matter for 10 days.

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha began hearing the 20 petitions on the matter on April 18. 

The pleas were 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 that these legislations did not recognise non-heterosexual marriages.

The Apex Court, while hearing the matter a few days back, had observed that it will confine the issue only to the Special Marriage Act and will not touch personal laws. 

The Union of India, which was a party to the case, had initially challenged the maintainability of the petitions on the grounds that the issue fell in the legislative domain.

However later, it agreed to confer certain rights to the couples of same gender, which were short of legal recognition as marriage. 

The Apex Court had asked the Central government whether certain executive instructions could be issued to ensure that same-sex couples had access to welfare measures and social security such as granting them permission to open joint bank accounts and name their partner as nominee in life insurance policies, PF and pension.

The Constitution Bench had further asked the Union of India whether a declaration of right to marry for same-sex couples could be issued, without interfering with the existing statutes. 

The counsels for the petitioners had sought replacement of words ‘husband’ and ‘wife’ in the Special Marriage Act in a gender neutral manner as ‘spouse’ or ‘person’.

The Union government opposed the argument, stating 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 bringing homosexual couples under its ambit.

The Central government also said that such an interpretation would disrupt various other legislations which dealt with adoption, maintenance, surrogacy, succession and divorce.

The National Commission for the Protection of Child Rights has recently intervened in the matter, expressing concerns about allowing same-sex couples to adopt a child. 

The Delhi Commission for the Protection of Child Rights, on the other hand, supported the petitions and backed the right of same-sex couples to adopt.

The petitioners were represented by Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran K.V. Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover and Geeta Luthra, along with Advocates Arundhati Katju, Vrinda Grover, Karuna Nundy and Manu Srinath. 

Solicitor General Tushar Mehta appeared for the Union government, while Senior Advocate Rakesh Dwivedi argued for the state of Madhya Pradesh, opposing the petitions. Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.

The States of Assam, Rajasthan and Andhra Pradesh have come forward against the legalisation of same-sex marriages in India.

A letter was issued to the States for expressing their views in reply to a letter issued by the Central government on April 18.

The letter invited the comments from all states on the matter pertaining to the same-sex marriage issue before the Supreme Court.

As per the report, the State of Andhra Pradesh informed that religious heads of various religions in the state were all opposed to the idea of granting legal recognition to the same-sex marriages.
The State shared its views against same sex marriage persons belonging to the LGBTQIA+ community.

The State of Assam stated that the recognition of marriage for same-sex couples and the LGBTQIA+ community challenges the validity of laws concerning marriage and personal laws enforced in the state.

The government said that while the matter calls for wide ranging discussions on the various aspects of the institution of marriage as a social phenomenon, across cross-sections of societies, the legal understanding of marriage has been that of an agreement or a contract between between two persons of opposite genders.

Further, it stated that legislation is the prerogative of the legislature, both at the Centre and in the States, and emphasized that the courts should view matters related to legislation in accordance with the core principles of our democratic structure.

The letter also stated that marriage, divorce, and ancillary subjects fall under entry 5 of the Concurrent list of the Constitution and are in the domain of the state legislature.

Accordingly, the Assam government opposed the views taken by the petitioner in the case and sought time to place its views further.

The State of Rajasthan stated that according to a report of the Department of Social Justice and Empowerment, Rajasthan, same-sex marriages will create imbalance in the social fabric, leading to far reaching consequences for the social and family system.

The Supreme Court on Wednesday orally observed that there was no bar on adoption by same-sex couples as adoption was the norm in many situations, and not the exception.

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha further said that an individual’s rights remained untouched by cohabitation. 

The top court of the country made the remark after the National Commission for Protection of Child Rights said that adoption of children could be not allowed by such couples as it was against their welfare and interest.

The NCPCR, which filed an intervention application in the petitions seeking legal recognition of same-sex marriages, said that it was the right of every child to be born and brought up by a heterosexual couple, since both the mother and the father played an important role in his/her development. 

Since a child could be born naturally only through a heterosexual union, it was justified to treat heterosexuals and homosexuals differently, noted the right body. It said the welfare of children was paramount and that there could not be even an iota of compromise or uncertainty in their raising and development.

Appearing for the Central Government, Solicitor General (SG) Tushar Mehta apprised the top court of the country that the Centre has received the response of seven states on this issue. 

Out of these, the States of Assam, Andhra Pradesh and Rajasthan have opposed the legal recognition to same-gender marriages.

The governments of Maharashtra, Uttar Pradesh, Manipur and Sikkim also submitted their responses to the Union of India, seeking more time to furnish their views.

The Apex Court had commenced hearing on the matter on April 18 and is likely to deliver the verdict before it goes for summer vacations from May 22 to July 2. Today is the ninth day of hearing. 

The Supreme Court on Wednesday rejected an application that sought recusal of Chief Justice of India D.Y. Chandrachud from hearing the petitions seeking legal recognition for same-sex marriages.

The application was moved by an intervenor named Anson Thomas, stating that the Chief Justice of India should recuse from hearing this matter.

As soon as the intervenor finished his submissions, CJI Chandrachud rejected the plea.

Solicitor General of India Tushar Mehta, who was present in courtroom no 1,  also raised objection to the recusal plea. 

Terming the application for recusal as an ‘aberration,’ the SG said that since the judge has made the submission, he would officially object to this.

CJI Chandrachud is heading the five-judge Constitution bench, which is currently hearing the 20 petitions seeking legal recognition of same-sex marriages. 

Other members of the Bench include Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha. 

The Apex Court had commenced hearing on the matter on April 18 and is likely to deliver the verdict before it goes for summer vacations from May 22 to July 2. Today is the ninth day of hearing.

The Supreme Court on Monday, while hearing the petitions seeking legal recognition for same-sex marriages, observed that the Indian Constitution itself was a ‘tradition breaker’. Same-sex marriages: Supreme Court calls Indian Constitution tradition breaker, says concept of marriage evolved with time

The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha observed that after Article 14 was brought in for the first time, it was followed by Articles 15 and 17. 

Thus, those traditions were broken. If those traditions were broken, what was held hallowed in Indian society in terms of caste, asked the Apex Court.

The Bench observed that it made a conscious break and went so far to hold untouchability as unconstitutional. Claiming that no other Constitution has done anything of this sort, the Bench  noted that traditions were there to the extent that they were there. At the same time, it was important to remain alive to the fact that the concept of marriage had evolved, it added.

Appearing for the Respondents, Senior Advocate Rakesh Dwivedi submitted that the issue of same-sex marriage was best left to the Parliament as even in the fields of reforms, such as dowry prohibition, the Courts have held that it was for the legislature to decide.

He said the first question to be considered would be whether there was a fundamental right under the Constitution for persons in same-sex relations to marry. As per Dwivedi, heterosexual couples had the right to marry as per their personal law, custom and religion.

Justice Bhat pointed out at this juncture that even inter caste marriages were not permitted traditionally. However, with time, the context of marriage has changed. 

He further observed that nothing was granted. The citizens of the country were free to exercise their right to speak and associate, it was part of their inherent rights. The Constitution never granted. Even the legislations were only recognised. Therefore, the right to marry was inherent. By calling it inherent, the right became a part of the Constitution. This can be located in either Articles 19 or 21, added Justice Bhat.

He said that within a marriage, it was up to the spouses to decide what constituted their marriage. The content was decided voluntarily by each party. The spouses decided whether to have children, it was entirely their choice. There could be marriages where the parties may not live together. There may be no matrimonial home. Marriages may not have any element of physical or sexual relations. He said the content, which was central to a marriage, depend totally on the spouses.

However, Dwivedi said that if a marriage was treated as an individual concept to be defined by the spouses, there would be no law.

The CJI also made some observations during the hearing. He said the core elements of a marriage were protected by constitutional values.

As per the CJI, marriage itself postulated two individuals to cohabit. It accompanied with it the existence of family. Marriage had procreation as a very important ingredient, although the validity of a marriage was not conditional on it. 

He further said that marriage was exclusionary to all others. People in a marriage were to exclude all others from the same. Talking about social acceptance of the existence of marriage, he said it was not confined to that individual, but how society looked at that institution.

CJI Chandrachud further said that it cannot be denied that the state has a legitimate interest in regulating marriage. He said the next issue would be whether heterosexuality was a core element of marriage.

The Supreme Court on Tuesday resumed hearing in the 19 petitions seeking legal recognition for same-sex marriages in India on the grounds that the right to marry a person of one’s choice should be extended to the members of LGBTQIA+ community also.

The Constitution Bench of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli had started hearing the petitions on April 18.

While the CJI, Justice Narasimha and Justice Kohli sat for hearing in physical mode, Justice Kaul and Justice Bhatt joined the Constitution Bench through video-conferencing.

Appearing for one of the petitioners, Advocate Geeta Luthra said this was the only petitioner couple in the case, who have been legally married for six years. Their marriage was registered in Texas, US. They also have a daughter, said the lawyer, adding that this was an important secular work.

Luthra said that today, 34 countries have accepted the same-sex marriages. This was not the case in India, she noted, calling it a discrimination on the basis of gender. 

Calling marriage a revolutionary concept, the Advocate said marriage has never been a static concept, but has always remained a concept that changed with the times.

The petitioner couple highlighted the discrepancy of their life by saying that when they were outside the country, they were a couple, however, as soon as they came to India, their marriage became invalid. 

They claimed that no one could circumvent their rights. They said just because they were living abroad, it did not mean their rights as an Indian citizen could be denied. The couple claimed that once they came to this country, they became strangers because their fundamental rights were not enforced. 

They sought legal recognition to same-sex marriages on the grounds that it would help them in getting their rights in this country.

Senior Advocate Anand Grover, representing one of the petitioners, rejected the notion given by the Central government that same-sex relationships was an urban and elitist concept.

He said the right to intimate association could be read into Article 21 in addition to privacy, autonomy and dignity.

Appearing for a transgender activist, Senior Advocate Jayna Kothari argued that the notion that a family always has a father and mother may not be correct. She said there were situations where one spouse had died or that they were separated, but none of these situations were different from the heterogeneous ones. 

She asked whether a family could be differentiated because of gender identity. 

Kothari contended that since the Right to family was recognised under Article 21 thus, the right to marry also has to be granted to same-sex couples.

Also representing the petitioners, Senior Advocate Menaka Guruswamy submitted that the Apex Court need not wait for the Parliament to legislate to fill up a vacuum. 

Calling the provisions of the Special Marriage Act, which did not recognise same-sex marriages as being unconstitutional, the Senior Counsel said that marriage was a matter of conscience under Article 25.

India’s first openly gay lawyer, Advocate Saurabh Kirpal argued that prevention of queer marriages in India by not granting them legal recognition may lead to lavender marriages between a man and woman, where either or both the spouses were homosexual.

He said that if non-heterosexuals were prevented from marrying, it would lead to lavender marriages, which in turn, would ruin two lives. 

The lawyer said there was nothing more detrimental than a gay man marrying and cheating a lady that way. He said often, homosexuals left the country in search of legal recognition of their relationships outside, which was leading to a “gay brain drain” in India.

The hearing will continue tomorrow, when the Counsel for the petitioners will wrap up their arguments in 45 minutes. Solicitor General Tushar Mehta will then make submissions on behalf of the Central government.

The Constitution Bench of the Supreme Court will not hear the 19 petitions seeking legal recognition to same-sex marriages on Monday due to the unavailability of Justice Sanjay Kishan Kaul and Justice S. Ravindra Bhat.

Earlier on Thursday, Chief Justice of India D.Y. Chandrachud had directed the petitioners to finish the arguments by April 20 only, stating that it will hear the petitions seeking legal recognition of same–sex marriages in the same way as it heard the Ayodhya land dispute case, taking it up on Monday and Friday also.

The Constitution Bench of the Supreme Court comprising the CJI, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli commenced hearing on the petitions pertaining to marriage equality rights for LGBTQAI+ community.on April 18.

The CJI said in the coming week, the Apex Court will hear the case on Monday, Tuesday, Wednesday and Thursday. This Court will hear it without a break, he noted, adding that the top court of the country heard the Ayodhya case on Mondays and Fridays also.

Normally, the Constitution Bench does not sit on Mondays and Fridays.

After a lawyer representing one of the petitioners sought more time for arguments, the CJI said three days were enough, adding that the Supreme Court needs to hear the other side (Central government) in detail.

Justice Kaul said that they were only dealing with one aspect (If Special Marriage Act can be interpreted to allow same sex marriage). He asked the petitioners not to widen the ambit.

The CJI then observed that this was the reason why some of the earlier CJIs could not constitute a Constitution Bench. Five judges had to leave their regular work, he added.

When the matter was called out, Arundhati Katju said that she had submitted the list sequence of the Counsels appearing on behalf of the petitioners, along with their required time. At this juncture, the Bench indicated that the petitioners should conclude their side of arguments by today itself. 

Dr. Singhvi submitted that the ultimate guiding star for the present batch of matters was the intention of statute, which was to provide the institution of marriage to all, irrespective of religious belief and permission. He further submitted that while enacting the statute, the Parliament could not have thought about homosexuals, but the society has evolved since. 

He said the institution of marriage was very important and in order to provide a stable relationship, a same-sex couple should also be granted the same right of marriage. It was imperative to expand the scope of framework in order to assimilate this evolution, he added. 

The Senior lawyer submitted that various provisions of the Special Marriage Act could be interpreted in a matter which recognised the same-sex couples.

Terming the 30-day notice and objection regime of the Special Marriage Act as unconstitutional, he said that such a regime was only peculiar to the Special Marriage Act, 1954 and directly struck at the right to privacy, autonomy and choice of the couple. He further submitted that this provision rather invited violence and was in contravention with the purpose of the Act. 

Senior Advocate Ramchandran, appearing on behalf of the petitioners, namely Kajal (a Dalit woman, employed at a bakery) and her partner – Bhavana (belonging to OBC, from Bahadurgarh, working as an accountant), submitted that the issue at hand was not limited to the concerns of the urban elite as alleged. 

He argued that marriage was not just a gateway to socio-economic privileges but also sometimes a societal protection from one’s own parental families. He submitted that couples such as the petitioners he represented did not have enlightened parents and thus, they have had to move to the Delhi High Court for protection orders. 

In light of this, the notice and objection scheme contemplated under the Special Marriage Act needs to be done away with, he prayed, adding that a protocol be put in place on the lines of the one set out in the judgment of Shakti Vahini granting protection from the Khaap Panchayat.

He argued that a “separate but equal” argument that the Union has sought to put forward could not be countenanced. 

The Senior Counsel submitted that the Union, in its counter-affidavit, had stressed the importance of procreation, arguing that as people in a same sex marriage cannot procreate, they need not be granted the right to marry. In response, he submitted that even many heterosexual females above the age 45 years may not be able to safely become pregnant, but were still allowed to marry. Therefore, procreation could not be a ground to deny the right to marry. 

With respect to the Transgender Act, Vishwanathan showed a chart prepared by him depicting the types of combination of relationships that can be entered into and how they can be brought within the purview of the Special Marriage Act. 

The arguments for the petitioners were led by Senior Advocate Mukul Rohatgi, assisted by Senior Advocates Saurabh Kirpal and Dr. Maneka Guruswamy, along with Advocate Arundhati Katju and a team of Advocates from Karanjawala & Co. 

Solicitor General Tushar Mehta and Additional Solicitor General Aishwarya Bhati appeared on behalf of the Union government. 

Senior Advocates Geeta Luthra, Anand Grover and Jayna Kothari represented other petitioners, who were still to argue.

Chief Justice of India D.Y. Chandrachud on Tuesday observed that the very notion of a biological man or biological woman being absolute was incorrect (or inherent).

The CJI made these observations while hearing the petitions seeking legal recognition of same-sex marriages. 

The Constitution Bench of the Supreme Court, comprising CJI, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice P.S. Narasimha, heard the petitions today.

Appearing for the Central government, Solicitor General Tushar Mehta said it was not a question of notion as a biological man meant a biological man. 

The CJI responded that there was no absolute concept of a man or a woman at all, adding that this was not an argument.

He further said that it was not a question of genitals. 

The CJI noted that the very notion of a man or a woman, as per the Special Marriage Act was not absolutely based on the genitals.

The SG said that he did not want to use the expression, but a biological man meant the genitals he had. .

Justice Kaul intervened by saying that it was a point of view and asked them to stop the discussion.

The SG argued that for men, irrespective of other attributes than the genitals, there were separate age limits prescribed. He asked the Supreme Court to examine whether the right to marry was outside the scope of law or a fundamental right. 

He said that if a notion was treated to be a guiding factor to decide man, then there were several Acts, which would unintentionally become non-workable. 

The SG asked as to how a person would be treated under the Criminal Procedure Code, when he was having the genitals of a man, but was otherwise being treated as a female. As a woman, can he be called under Section 160 CrPC after a particular hour? 

The SG further said that it may be only a notion, but there were several issues which need to be discussed. It would be better if these issues went through the Parliament, he added. 

The Centre told the Delhi High Court that though the Supreme Court’s decision in the Navtej Singh Johar case decriminalized sexual relationship among consenting same sex adults, it does not accord legal recognition to marriage between non-heterosexual persons.

The Division Bench led by Chief Justice D.N. Patel and Justice Jyoti Singh is seized of a batch of petitions seeking legal recognition of marriage between same sex, queer or non-heterosexual persons under the Special Marriage Act, 1954 and other laws.

Solicitor General Tushar Mehta, appearing for the Centre, contended the Navtej Singh Johar case pertains merely to decriminalizing consensual relationship between consenting same sex adults while not touching upon the aspect of legality of marriage solemnized between such couple.

In addition, he submitted that law only recognizes marriage between a biological man and a biological woman. “Personal laws are settled. Marriage which is contemplated is between a biological man and a biological woman,” he stated.

The Bench posted the matter for final hearing on November 30, 2021.

Among the batch of pleas, a petition filed by Overseas Citizen of India, Joydeep Sengupta, and his American partner Blaine Stephens, a same sex married couple residing abroad, also seeks declaration of applicability of Section 7A(1)(d) of the Citizenship Act, 1955, which entitles a spouse of foreign origin of an OCI cardholder to apply for OCI status in the country, to non-heterosexual, same-sex or queer spouses.

In addition, the plea prays for declaration of the Foreign Marriage Act, 1969 as also the the Special Marriage Act, 1954 as violative of Articles 14, and 21 of the Constitution to the extent that these enactments excludes same-sex marriages or queer marriages from its purview.

Relying on the decision of the Top Court in “Navtej Singh Johar vs. Union of India”, (2018) 10 SCC 1, wherein the Court has decriminalized the consensual sexual acts between persons of same sex, the plea states:  “Because one’s right to marry an individual of their choice is a freedom accorded to every person under Article 19, and read with Article 21, their right to privacy allows them the inviolable right to determine how this freedom is exercised.”

Another petition filed by a group of non-heterosexual persons seeks declaration that a marriage solemnized between “any two persons” regardless of any gender or sexuality be declared legal under the Special Marriage Act, 1954. Alleging that the Indian Constitution invalidates any gender and sexuality-based preconditions for marriages solemnized under SMA, the plea by one Udit Sood and others states: “The object of the Special Marriage Act, 1954, is to expansively provide access to the fundamental right to marry, notwithstanding societal prejudices. Conditioning marriage on compliance with outdated and unscientific heteronormative values and binary notions of gender, excludes LGBTQ+ individuals.”