The long-anticipated judgment on the question of same-sex marriage in the Supriyo Vs Union of India case will be pronounced tomorrow (Tuesday, October 17, 2023) by the Constitution Bench of the Supreme Court.
The Constitution Bench of the Apex Court comprises Chief Justice of India (CJI) DY Chandrachud along with Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha.
The Chandrachud-headed SC bench commenced hearing the case on April 18 and reserved the case for judgment on May 11, 2023, after 10 days of hearing.
The matter has garnered attention due to 20 petitions presented to the bench, collectively representing the pleas of various same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitioners have challenged the provisions of the Special Marriage Act (SMA), 1954; Hindu Marriage Act (HMA), 1955; and the Foreign Marriage Act (FMA), 1969. The Supreme Court, however, took a categorical position that it would examine only the provisions of the SMA and would not touch personal laws.
The Union government has taken the position that it would consider conferring certain rights to same-sex couples but would not recognise the legal validity of their marriage. The government had also argued that the authority to make decisions on matters like marriage solely lies with the Legislature.
The petitioners have also raised the demand to replace the wordings as “husband and wife” in the SMA by more gender-neutral terms such as “spouse” or “person”. The Union government opposed this plea by raising the contention that such an interpretation would jeopardise many other existing statutes related to the civil life of the people such as adoption, succession, surrogacy, maintenance, etc.
The petitioners have so far faced stringent opposition to their demand for legalising same-sex marriage. In March 2023, a group of retired judges made a public appeal urging the petitioners as well as the society to roll back the demand for legalising same-sex marriage considering “the Indian society and culture”.
The National Commission for the Protection of Child Rights (NCPCR) has also raised objections to same-sex couples adopting children, asserting that it might jeopardise the well-being of children. In contrast, the Delhi Commission for Protection of Child Rights (DCPCR) has taken a different stance and has advocated for such adoptions. They argue that there is a lack of empirical data indicating that homosexual couples are unsuitable for parenting.
