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SC clubs, transfers to itself all pleas on same-sex marriage

ByAbraham Thomas, New Delhi
Jan 06, 2023 11:56 PM IST

Again on December 14, the Court entertained a petition by two same sex partners seeking the transfer of their case from the Delhi high court.

The Supreme Court on Friday transferred to itself all petitions seeking legal recognition of same sex marriage under various matrimonial statutes and directed the Centre to file its response to them by February 15 for the matters to be heard in March.

As per a chart available with the Court, the transferred petitions included eight cases from the Delhi high court, and one each in Kerala high court and Gujarat high court. (Sushil Kumar/HT)
As per a chart available with the Court, the transferred petitions included eight cases from the Delhi high court, and one each in Kerala high court and Gujarat high court. (Sushil Kumar/HT)

A bench of Chief Justice of India (CJI) Dhananjaya Y Chandrachud, and justices PS Narasimha and JB Pardiwala said: “Since several batches of petitions are pending before diverse high courts involving the same question, we are of the view that they be transferred and decided by this Court.” The top court itself entertained a petition on this issue on November 25and issued notice to the Centre for its response.

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Again on December 14, the Court entertained a petition by two same sex partners seeking the transfer of their case from the Delhi high court. On that day, the Court expressed its inclination to transfer similar pleas from various high courts which led to filing of multiple transfer petitions and fresh writ petitions, seeking similar relief. The Court issued notices on all petitions and posted the matter on March 13.

As per a chart available with the Court, the transferred petitions included eight cases from the Delhi high court, and one each in Kerala high court and Gujarat high court. As all petitioners who filed petitions in high courts were not present before the bench, the Court allowed them to appear virtually on the next date to obviate the inconvenience of engaging a lawyer and physically travelling to Court.

Solicitor General Tushar Mehta appearing for Centre told the Court that one of the matters pending in the Delhi high court was ripe for hearing. “If you can await the Delhi high court verdict, this Court can have the benefit of a high court’s view. The other option is to hear all petitions pending before the high courts by transferring it here.”

The petitioners, represented by senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy and advocates Karuna Nundy and Arundhati Katju said: “Since this Court is already considering the issue, it is better if all the matters are transferred here.” They pointed out that before the Kerala high court, a statement was made by the deputy solicitor general that the Centre was itself keen to file a transfer petition. However, Mehta clarified that the law officer was not properly informed.

As multiple petitioners were involved, the bench streamlined the proceedings by nominating a lawyer each representing the Centre and the petitioners to compile the relevant documents, past judgments and laws involved for the convenience of the Court. It further directed the Centre to file its response on the issues involved in each petition by February 15.

The petitions, some of whom are by LGBTQ people, sought recognition of their marriage under the various matrimonial laws such as Special Marriage Act, Hindu Marriage Act and Foreign Marriage Act. Further, issues of privacy were raised by certain petitioners as registration under Special Marriage Act requires prior notice of 30 days inviting objections before a marriage is to be solemnized.

One of the petitions stated, “The public notice and objection provision of Special Marriage Act places these individuals (same sex couples) in the impossible situation of either being forced to publicize their relationship (and thus risk ostracism, persecution, and violence) or to not marry at all.” In many such cases, the petitioners claimed that their relationship is not disclosed even to their parents.

In one of the transferred cases, the petitioners – one an Indian national and another a US citizen – sought recognition of their marriage in India after having registered their marriage in the US in 2014. The petitions relied on the verdict given by the Supreme Court in 2018 in the Navtej Singh Johar case where the Court decriminalized consensual relationship between adults of same sex. This was earlier punishable under Section 377 of the Indian Penal Code which caused harassment to same sex couples.

Since the issue of same sex marriage was not considered then, the top court had issued notice to the Centre on a petition filed by Supriya Chakraborty and others and even requested for Attorney General R Venkatramani’s assistance.

The Union had made its stand clear on the issue in the Delhi high court by way of an affidavit in 2021 where it opposed the prayer to validate marriages between same sex partners. The government said that a marriage in India can be recognized only between a “biological man” and a “biological woman” capable of producing children.

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