Supreme Court Nears Verdict On Marriage Equality For Queer Couples in India

The Supreme Court of India is on the verge of delivering a landmark judgment concerning the legal recognition of same-sex marriages in the country. A bench led by Chief Justice DY Chandrachud, alongside Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, initiated proceedings on this significant matter on April 18, eventually reserving its judgment on May 11, 2023. With the impending retirement of Justice Bhat on October 20, 2023, the verdict on marriage equality is eagerly anticipated.

This pivotal case comprises twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. They challenge the provisions of the Special Marriage Act of 1954, the Hindu Marriage Act of 1955, and the Foreign Marriage Act of 1969, specifically targeting the aspects where these legislations fail to recognize non-heterosexual marriages. During the hearings, the bench clarified its intention to limit the scope of the issue to the Special Marriage Act and avoid interfering with personal laws.

A noteworthy development in the case was the Union Government's willingness to explore possibilities for extending certain rights to same-sex couples, even if full legal recognition as marriage is not granted. This shift in stance came in response to the Court's query about the feasibility of issuing executive instructions to ensure access to welfare measures and social security, such as joint bank accounts and nominee rights in insurance policies, provident funds, and pensions.

The bench also deliberated on the idea of declaring the right to marry as applicable to same-sex couples without altering existing statutes. Petitioners argued for a gender-neutral interpretation of terms like "husband" and "wife" in the Special Marriage Act, suggesting they be replaced with "spouse or person." However, the Union Government countered that such an interpretation would disrupt various other legislations dealing with adoption, maintenance, surrogacy, succession, divorce, etc.

The National Commission for the Protection of Child Rights expressed concerns about same-sex couples adopting, while the Delhi Commission for the Protection of Child Rights supported the petitions, advocating for the rights of same-sex couples to adopt.

A multitude of prominent legal voices, including Senior Advocates Mukul Rohatgi, Dr. Abhishek Manu Singhvi, Raju Ramachandran, KV Vishwanathan, Dr. Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Anand Grover, Geeta Luthra, and others, passionately presented the petitioners' arguments. Solicitor General of India Tushar Mehta represented the Union Government, while Senior Advocate Rakesh Dwivedi argued against the petitions on behalf of the State of Madhya Pradesh. Senior Advocates Kapil Sibal and Arvind Datar also presented counterarguments opposing the petitions.

Author: Anushka Taraniya

News Writer, MIT ADT University