New Delhi: The five-judge Constitution Bench of the Supreme Court on Wednesday withheld its decision on a group of petitions asking the court to order the Central government to make same-sex marriage legal.
The judgement was reserved by the five-judge Constitution Bench, which also included Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha in addition to Chief Justice of India (CJI) Dr. Dhananjaya Yeshwant Chandrachud.
After the solicitors for all sides had finished speaking, CJI Dr Chandrachud stated, "We are reserving the judgement." The matter was heard by the Constitution Bench on April 18, and the hearing lasted for almost ten days.
The Supreme Court is addressing several petitions that ask for the legal recognition of same-sex unions. One of the early petitions brought up the issue of the lack of a legal framework allowing members of the LGBTQIA+ community to marry whoever they choose. The court has clarfied that it will deal with the issue under the provisions of the Special Marriage Act and will not touch the personal laws on this aspect.
One of the petitions claimed that the pair was fighting to protect LGBTQ+ people's fundamental right to marry whoever they chose, adding that "the exercise of which ought to be protected from the disdain of legislative and popular majorities.
The petitioners requested for the proper instructions from this Court to enable them to marry each other and further maintained their fundamental right to do so. Abhishek Manu Singhvi, senior advocate for one of the petitioners, said that the petitioners’ approach is consistent in principle with the two anchoring points being the underlying thrust of the SMA and the fundamental rights in the Constitution.
He further argued that the Court could rule that non-heterosexual couples are covered by the SMA's provisions for marriage solemnization and registration, with the exception of any instances in which the SMA or another applicable law is written to protect a "wife" against a "husband" in a heterosexual marriage or a "woman" against a "man" in a situation that is gender-specific.
In addition, he argued that the age requirement for same-sex couples may be interpreted as 18 years for lesbian couples and 21 years for gay couples. The aforementioned ages would apply to transgender people based on the gender or sex they identify with.
In his conclusion, he said that recognising their romantic relationships through a distinct civil unions regime is not the best course of action because doing so would be equivalent to resurrecting the segregationist ideology of "separate but equal."
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