Recognition of Same-Sex Marriage
Supriyo @ Supriya Chakraborty & Anr. v. Union of India
The Supreme Court will decide if the Special Marriage Act denies same-sex couples the right to marry.
Petitioners: Supriyo Chakraborty, Abhay Dang, Parth Phiroze Mehrotra, Uday Raj Anand
Lawyers: Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, Saurabh Kirpal, Arundhati Katju, Karuna Nundy, Priya Puri, Shristi Borthakur
Respondents: Union of India
Do the words ‘male’ and ‘female’ in S. 4(c) of the Special Marriage Act deny same-sex couples the right to marry?
On November 14th, 2022, two same-sex couples filed Writ petitions in the Supreme Court seeking legal recognition of same-sex marriages in India. The petitions were centred around the constitutionality of the Special Marriage Act, 1954 (the Act). The first petition was filed by Supriyo Chakraborty and Abhay Dang. The second petition was by Parth Phiroze Merhotra and Uday Raj Anand.
The petitioners argue that Section 4(c) of the Act recognises marriage only between a ‘male’ and a ‘female’. This discriminates against same-sex couples by denying them matrimonial benefits such as adoption, surrogacy, employment and retirement benefits. The petitioners asked the Court to declare Section 4(c) of the Act unconstitutional.
The petitioners argue that the non-recognition of same-sex marriage violates the rights to equality, freedom of expression and dignity. They relied on NALSA vs Union of India (2014) and Navtej Singh Johar vs. Union of India (2018) which recognised non-binary gender identities and guaranteed equal rights to homosexual persons.
On November 25th, 2022, a Supreme Court Bench comprising Chief Justice D.Y. Chandrachud and Justice Hima Kohli passed an Order directing the Union to respond to the petitions. Similar petitions are pending before the Delhi and Kerala High Courts.
On January 3rd, 2023, Senior Advocate Menaka Guruswamy and Advocate Karuna Nundy urged a 2-Judge Bench comprising CJI Chandrachud and Justice P.S. Narasimha to transfer two similar petitions pending before the Delhi & Kerala High Courts to the Supreme Court. The Bench agreed to list the transfer petitions along with the main petition on January 6th, 2023.
On January 6th, 2023, a 3-Judge Bench comprising Chief Justice D.Y. Chandrachud with Justices P.S. Narasimha and J.B. Pardiwala transferred 9 pending petitions dealing with similar issues from the Delhi and Kerala High Courts to itself.