The Supreme Court of India is set to hear a review petition on July 10 against its earlier judgement that denied marriage equality rights to queer couples. A five-judge bench, led by Chief Justice of India DY Chandrachud and including justices Sanjiv Khanna, Hima Kohli, BV Nagarathna, and PS Narasimha, will preside over the hearing.
The review petition challenges the court's October 17, 2023, majority judgement which rejected petitions seeking legal recognition of same-sex and queer marriages under various acts including the Special Marriage Act, 1954, and the Foreign Marriage Act, 1969.
The review petitions argue that the majority judgement contains errors of law and represents a grave miscarriage of justice. One such petition, filed through advocates Karuna Nundy and Ruchira Goel, asserts that the majority opinion failed to recognize the petitioners’ request to extend existing marriage laws to queer couples, rather than create a new legal institution. The petitioners claim this misinterpretation leads to discriminatory practices contrary to constitutional protections.
The majority judgement, delivered by justices SR Bhat, Hima Kohli, and PS Narasimha, stated that there is no fundamental right to marry for queer individuals. It allowed transgender persons the right to heterosexual marriage under existing laws but denied the creation of a legal framework for same-sex unions.
Furthermore, the judgement did not extend adoption rights to queer couples, upholding Regulation 5(3) of the Central Adoption Resource Authority (CARA) Regulations, which treats children of married and unmarried couples differently.
Chief Justice Chandrachud and Justice SK Kaul had delivered minority opinions that diverged from the majority, emphasising the need for non-discriminatory treatment and equal protection under the law for queer individuals.
The review petitions argue that the majority judgement failed to consider these perspectives adequately and overlooked the constitutional rights of queer couples and their children.
The petitioners also highlight the practical implications of the judgement, noting that it leaves queer relationships unprotected by law and perpetuates discrimination. They emphasise that the lack of legal recognition impacts not only the couples but also their children, who remain outside the legal framework that protects families.
In seeking a review, the petitioners request the Supreme Court to reconsider its earlier decision and provide remedies under the Special Marriage Act.
They propose that provisions under Sections 15-18 of the Act be interpreted to allow non-heterosexual marriages to evolve through common law, thereby respecting the constitutional rights recognized by the court.
The upcoming hearing on July 10 will be crucial in determining whether the Supreme Court will reassess its stance on marriage equality and address the legal and social implications of its earlier judgement. The outcome has significant implications for the rights and recognition of queer couples and their families in India.
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