Same-Sex Marriage In India: A History Of The Case In Supreme Court

After conducting extensive hearings in May on a series of petitions advocating for the legal recognition of same-sex marriages, the Supreme Court has finally delivered a verdict on October 17, 2023.

The Supreme Court has held that the right to enter into union cannot be restricted on the basis of sexual orientation and that the failure of state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.

While the judgement is historic, the apex court has also recognised that it cannot make any law on same-sex marriage since law-making is the legislature's domain.

When did the SC first start hearings on same-sex marriage?

The case of same-sex marriages had reached the Supreme Court last year when 18 same-sex couples filed petitions seeking the acknowledgement of same-sex marriages under the Special Marriage Act, the Foreign Marriage Act, and the Hindu Marriage Act.

PTI

On November 25, 2022, two same-sex couples had argued in front of the Supreme Court that the Special Marriage Act (SMA) should be made gender-neutral.

In response, the Supreme Court issued notices to the Centre and the Attorney General of India for the same.

What is the Special Marriage Act?

The Special Marriage Act 1954 is an Act with provision for civil marriage (or "registered marriage") for people of India and all Indian nationals in foreign countries, irrelevant of the religion or faith followed by either party.

A marriage performed under the Special Marriage Act 1954 is a civil contract and is not governed by personal laws. There is no need for rites or wedding ceremonies.

How the case for same-sex marriage had progressed in the SC

After the first petitions in November 2022, a married couple - comprising an Indian and a US citizen - sought legal recognition of their marriage under the Foreign Marriage Act on December 14, 2022.

Representative image/ BCCL

The Supreme Court then consolidated all cases on same-sex marriage from different high courts and asked the government to respond by February 15. The SC then set a hearing date for March 13, 2023.

What has Centre said about same-sex marriage?

In March 2023, the Centre filed an affidavit opposing same-sex marriage.

The Union government stated in the affidavit that living together as partners and same-sex relationships are not comparable to the Indian family unit concept, which involves a biological man and a biological woman.

On March 13, 2023, the Supreme Court referred the case to a constitutional bench.

Which religious bodies had opposed same-sex marriage?

In April 2023, religious and child rights bodies presented their perspectives on same-sex marriage.

The Jamiat Ulama-I-Hind said that same-sex marriage is an assault on the family system and goes against the personal laws of all religions that recognise the concept of marriage between a man and a woman.

Jamaat-e-Islami Hind (JIH) vice-president Prof Salim Engineer had also said: "We feel that the correct and universally accepted meaning of marriage refers to the marriage between a man and a woman. Any tampering therein would go against our civilisational values as well as disturb the many personal laws of the country."

Reverend Vijayesh Lal, General Secretary of the Evangelical Fellowship of India had said, "We hold that the traditional marriage between man and woman has sanctity. We subscribe to the biblical view on marriage."

The Delhi Commission for Protection of Child Rights (DCPCR) supported legalising same-sex marriage and conferring adoption and succession rights for same-sex couples.

What have the states said about same-sex marriage?

Finally, in April 2023, a five-judge Constitution bench began hearing the batch of pleas.

The hearing continued on May 9, when the Central Government told the Apex court that Rajasthan, Andhra Pradesh, and Assam had opposed the plea seeking legal sanction for same-sex marriages.

Rajasthan government said in a submission that legalising same-sex relationships will create an imbalance in the social fabric, leading to widespread consequences for the social and family systems.

BCCL

The Assam government emphasised that the legal understanding of marriage has been that of an agreement/ contract between two persons of opposite genders and that legislation is the prerogative of legislature.

The Andhra Pradesh government, after consulting the heads of various religions in the state on same-sex marriage, has said that the state is against same-sex marriage and/or persons belonging to the LGBTQIA+ community.

Final verdict of the SC on same-sex marriage

Finally, on October 17, the Supreme Court delivered a 3:2 split verdict, and no legal recognition was granted to same-sex marriages.

The court recognised that the freedom of queer to enter into a union is guaranteed under the Constitution but stated that it is the legislature's domain to make policy on same-sex marriage.

CJI Chandrachud directed the central government to constitute a committee to decide the rights and entitlements of persons in queer unions.

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