Same-sex marriage in India: Supreme Court to pronounce judgment today

Over 20 petitions advocating for legal equality of same-sex couples in matters of marriage, including adoption, succession, inheritance, divorce, among others have been placed before the Supreme Court

The verdict will be handed down after a marathon ten-day hearing that took place between March and April. It will address over 20 petitions advocating for the legal equality of same-sex couples in matters of marriage, including adoption, succession, inheritance, divorce, among others.

Special Marriage Act and Foreign Marriage Act

A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narishma, has been tasked with this historic decision. The bench emphasised that it would not delve into personal laws but would instead concentrate on evaluating the Special Marriage Act (SMA) and the Foreign Marriage Act to determine if they adequately address same-sex marriages.

The court also clarified that it would not interfere with personal laws such as the Hindu Marriages Act but would focus on the legal aspects of these specific acts.

Petitioner arguments

The petitioners, represented by senior advocates Mukul Rohatgi, Abhishek Manu Singhvi, Raju Ramachandran, Anand Grover, KV Viswanathan, Geeta Luthra, Saurabh Kirpal, Menaka Guruswamy, and others, have presented a spectrum of views arguing for the LGBTQIA+ community's right to equality.

Petitioners include same-sex couples, rights activists, social workers and organisations.

Petitioners argued for the state's recognition of same-sex unions under the SMA, emphasising that legal recognition was essential to grant dignity to these unions and ensure access to social security and welfare benefits.

The petitioners cited the 2018 Navtej Johar case, which decriminalised homosexuality, and the 2017 nine-judge bench judgment in the right to privacy case, which acknowledged sexual orientation as a facet of privacy. They called for a reinterpretation of the SMA and other statutes to recognise marriage as a union independent of gender and sexual identity or to strike down provisions that specify "men" and "women" for validating a marriage. In place, the petitioner argue for the use of neutral terms such as "person" and "spouse".

Some petitioners also challenged Sections 5 to 8 under SMA that require issuing of a 30-day public notice inviting objections to a marriage. They claimed that that the provision was "patriarchal" and an invasion of privacy.

Centre's opposition to same-sex marriage

The central government has consistently opposed recognising same-sex marriages. It argued that this form of recognition is an "urban elitist" concept and maintained that Parliament, not the judiciary, should decide the matter. The government contended that marriage was an exclusively heterosexual institution and labeled those advocating for marriage equality as "urban elites". The Supreme Court challenged this argument, demanding data to substantiate these claims. Senior Advocate K V Vishwanathan countered the government's stance by presenting the case of a transgender person seeking recognition of same-sex marriages, highlighting the importance of inclusivity and equality.

During the hearings, the Centre agreed to set up a committee, headed by the cabinet secretary, to explore granting legal rights to same-sex couples without formal recognition of their relationship as marriage. The Supreme Court urged the issuance of executive guidelines to enable same-sex couples to access financial security measures, such as joint bank accounts and provident funds, akin to married couples.

Countries where sam-sex marriage is legal

There are 34 countries where same-sex marriage is legal. These are: Andorra, Argentina, Australia, Austria, Belgium, Brazil, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America, and Uruguay.

Out of these 23 countries legalised same-sex marriage nationally through legislation, 10 countries did it through court decisions, and two countries enacted legalisation through legislation after the court mandated them to.

Estonia's parliament passed a law legalising same-sex marriage on June 20, 2023 which will come into effect January 1, 2024.