The Supreme court issues notice to center, Attorney General on pleas to recognize same sex marriage under Special Marriage Act.

The Supreme court on two PIL filled by the gay couple seeking recognition of same sex marriage under the Special Marriage Act, 1954 issued notice to the Attorney general of India and to centre government that returnable in four weeks.

A bench headed by Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli heard the matter before seeking the response of the Central government and its top law officer.

Brief of case

The first PIL was filed by Supriyo Chakraborty and Abhay Dang, who have been a couple for almost 10 years and recently had a commitment ceremony.

The second PIL was filed by Parth Phiroze Mehrotra and Uday Raj Anand from Hyderabad, who have been in a relationship with each other for the last 17 years. They said they were presently raising two children together, but since they cannot legally solemnize their marriage, it has resulted in a situation where both cannot have a legal relationship of parent and child with both their children.

The petitioners look for a direction by the top court that the right to marry a person of one’s choice be enlarged to persons belonging to LGBTQ (lesbian, gay, bisexual, and transgender and Queer).

The plea defined that non-recognition of same-sex marriages is violative of right to equality and right to life under articles 14 and 21 of the Constitution.

Same sex marriage 

India has traditionally recognize same sex marriage as alien cultural syndrome. LGBT people have to face or tackle many obstacles to recognize their rights. By their constant effort the court decriminalized Sec 377 of the IPC, 1860.

In a landmark judgment in September 2018, a five-judge Constitutional bench of the Supreme Court had decriminalised homosexuality under Section 377 of the IPC i.e a 158-year-old colonial-era law. Then Chief Justice of India Dipak Misra, who headed the constitutional bench, stated that The LGBT community has the same rights as of any ordinary citizen. Respect for each other’s rights and others are supreme humanity. Criminalising gay sex is irrational and indispensable.

Special Marriage Act, 1954

The Special Marriage Act provides a civil form of marriage for couples who cannot marry under personal law. But there no specific provision provides by the legislature in concern with the same sex marriage. Therefore, there is a concept which is known as Uniform Civil Code by the authorities. Uniform Civil Code means  one law for the nation which includes all the sects and religion of the country. There is a need for uniform laws which is provided under Art 44 of the Constitution of India.

Issues raised by the Petitioner

The petitioner in the plea raised following issues:

1. Issues is sequel to Navtej singh johar and Puttaswamy Judgment.

Senior Advocate Mukul Rohtangi Stated “ This is a living issue not property issue”.

Impact is upon health and succession. We are only here to talk about the Special Marriage Act.

2. Issues affects the basic rights like gratuity, adoption, joint accounts and surrogacy of same sex couple.
3. The plea points out the sec 4 of Special Marriage Act which permits any two persons to solemnize their marriage, sub sec (c) restrict its application only to male and female.
4. Legislature has to make gender neutral provisions for solemnization of marriage.

  

To a query from the bench on the pleas before the Kerala High Court, Kaul pointed out that it was to declare provisions of the Act, which excludes marriages between same sex couples, unconstitutional and void — and to declare that homosexual couples are entitled to solemnise and register their marriages under the Act.