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Supreme Court transfers to itself petitions seeking legal recognition of same sex marriage

The Supreme Court on Friday transferred to itself petitions pending in various High Courts seeking legal recognition of same sex marriage. A three-judge Bench led by Chief Justice of India D.Y. Chandrachud said there was broad consensus among the petitioners to shift the cases to the Supreme Court for an authoritative ruling on the issue, especially on the question whether same sex marriage should be brought within the ambit of the Special Marriage Act of 1954.

Batches of petitions were pending before the Delhi, Kerala and Gujarat High Courts.
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The Bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, directed the Centre to file its response to the petitions on or before February 15. The court listed the case for directions on March 13.

The Bench asked the parties to submit common compilations of arguments and judgments they want to place before the court during arguments for speedy and efficient adjudication. It appointed advocates Arundhati Katju, for the petitioners, and advocate Kanu Agarwal, for the Union, as nodal counsel to coordinate the preparations for the court hearing.

One of the petitions filed by Supriya Chakraborty and Abhay Dang said the non-recognition of same sex marriage amounted to discrimination that struck at the root of dignity and self-fulfilment of LBTQ+ couples. A separate petition was also filed by Parth Phiroze Mehrotra and Uday Raj Anand.

The court issued notice in a separate petition filed by Utkarsh Saxena and Ananya Kotia challenging the mandatory requirement to issue public notice and objection to marriage contemplated under the Special Marriage Act and the Foreign Marriage Act. They argued that the provisions expose same sex couples to the risks of ostracism, persecution, and violence.

The petitioners had argued that the case was a sequel to the 2018 Constitution Bench judgment in the Navtej Johar case in which homosexuality was de-criminalised. The petitioners said the 1954 Act should grant same sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.

They said they did not want to interfere with individual personal laws but only seek to make the 1954 Act gender-neutral. The petitioners argued that 15 legislations which guaranteed the rights of wages, gratuity, adoption, surrogacy, etc., were not available to the LGBTQ+ citizens.

Senior advocate Menaka Guruswamy, for the petitioners, had argued that the fundamental issue here was “how do I protect my family?”

“The Special Marriage Act of 1954 ought to apply to a marriage between any two persons, regardless of their gender identity and sexual orientation,” a petition said.

If not, the Act, in its present form, should be declared violative of the fundamental rights to a dignified life and equality as “it does not provide for solemnisation of marriage between same sex couple”.