A gay couple on Friday approached the Supreme Court seeking legal recognition for same-sex marriage under the Special Marriages Act.
Asserting their fundamental right to marry each other, they sought the court's intervention to issue appropriate directions to concerned authorities allowing them to solemnise their marriage.
Legal loopholes obstructing same-sex marriages
The petition has brought focus on the legal lacunae that curtail LGBTQ+ community persons' right to marry a person of their choice. The couple moved the court through a writ petition under Article 32 of the Constitution, to safeguard their fundamental right to marry a person of their choice "the exercise of which ought to be insulated from the disdain of legislative and popular majorities."
Article 32 empowers every citizen of the country to seek constitutional remedies in the apex court if they have been denied enjoyment of any of the fundamental rights listed under Part III of the Constitution.
Right to marry a person of one's choice a fundamental right
The Public Interest Litigation submitted in court that the right to marry a person of one's choice was recognised under Article 21 of the Constitution in the 2018 Shafin Jahan v Ashok KM case. Subsequently, the petition contends that this fundamental right is guaranteed under the Constitution of India to each "person" and that has been recognised explicitly by this Court.
They further stressed that the Supreme court has, in a number of rulings, expressly held that members of the LGBTQ+ community have the same human, fundamental, and constitutional rights as other citizens, as per a report on NDTV.
PIL alleges discrimination
The petitioners submit that under the present legal framework, members of the community have been discriminated against by not being allowed to exercise their right to marry a person of their choice and this is violative of their fundamental rights guaranteed under Part III of the Constitution, including Articles 14, 15, 19(1)(a), and 21.
The petitioners told the court that they have been involved in a loving relationship with each other for the last seventeen years and are presently raising two children together, but unfortunately because they cannot legally solemnise their marriage, it has resulted in a situation where both petitioners cannot have a legal relationship of parent-child with both of their kids.
