The Constitutional bench of Supreme Court in the case observed and has reserved its judgment on the batch of pleas moved seeking legal recognition for same-sex marriages, which being after ten days of hearing the matter.
The bench comprising of Chief Justice of India DY Chandrachud, Justice Sanjay Kishan Kaul, Justice S Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha in the case observed and has started hearing the matter on April 18, 2023. Therefore, there being 20 petitions filed before the bench which are being filed by various same-sex couples, transgender persons and LGBTQIA+ activists challenging the provisions of the Special Marriage Act 1954, the Hindu Marriage Act 1955 and the Foreign Marriage Act 1969 in order to extent these legislations as they do not recognise the non-heterosexual marriages.
In the present case, the bench observed and has expressed that the said bench will continue the issue only to the Special Marriage Act and will not touch personal laws. Therefore, another incident which took into place in the case was the willingness which is being expressed by the Union Government and which had been opposed the plea moved on the ground that is a matter for the Parliament to decide in order to consider if certain rights could be conferred upon same-sex couples short of legal recognition as marriage and the same being in response to a query which is being raised by the Court if certain executive instructions could be issued in order to ensure that same-sex couples have access to welfare measures and social security – such as permission to open joint bank-accounts, the name of the partner as nominee in life insurance policies, PF, pension etc.
The bench in the case observed and has mulled over whether a declaration of right to marry for same-sex couples could be issued by the court, without interfering with the existing statutes. Further, the petitioner in the case 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’. Thus, the same is to be opposed by the Union Government wherein stating that the Special Marriage Act was being enacted with an altogether different purpose in mind and when the same was being passed in the year 1954, the legislature never contemplated brining homosexual couples under its ambit. Therefore, it has also been stated by the Centre that such an interpretation will disrupt various other legislations which deal with adoption, maintenance, surrogacy, succession, divorce etc.
Therefore, the National Commission for the Protection of Child Rights intervened in the manner wherein it expressed concerns about allowing same-sex couples to adopt. It has also been supported by the Delhi Commission for the Protection of Child Rights the petitions and has backed the right of same-sex couples to adopt.
The counsels, Senior Advocates Mukul Rohatgi, Dr Abhishek Manu Singhvi, Raju Ramachandran KV Vishwanathan, Dr.Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Geeta Luthra, Advocates Arundhati Katju, Vrinda Grover, Anand Grover, Karuna Nundy, Manu Srinath etc., argued for the petitioners.
The Solicitor General of India Tushar Mehta appeared for the Union Government.
The counsels, Senior Advocate Rakesh Dwivedi argued for the State of Madhya Pradesh in opposition of the petitions.
The counsels, Senior Advocates Kapil Sibal and Arvind Datar also argued opposing the petitions.
