New Delhi [India], On July 10, the Supreme Court will hear the review petition against the high court ruling rejecting marriage equality rights for queer couples.
A five-judge bench headed by Chief Justice of India DY Chandrachud will hear the petition seeking review of the apex court's order related to marriage equality. The other four judges on the bench will be Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha.
Notably, Justices SK Kaul and S Ravindra Bhat, who retired from office, have been replaced by Justices Sanjiv Khanna and BV Nagarathna. Several review petitions have been filed before the Supreme Court challenging the judgment of the apex court, which has denied the right to equal marriage to queer couples.
One of the review petitions has been presented through lawyers Karuna Nundy and Ruchira Goel, who sought to review the majority ruling dated October 17, 2023, issued by the highest court, which rejected a batch of petitions, seeking recognition same-sex and queer legal. marriage under the Special Marriage Act 1954 (SMA), the Foreign Marriage Act 1969 (FMA), the Citizenship Act 1955, customary law and other applicable laws.
The apex court delivered four separate judgments dated October 17, 2023. The majority judgment was delivered by Justices SR Bhat, Hima Kohli and PS Narasimha. Chief Justice of India DY Chandrachud and Justice SK Kaul have given minority judgments. The majority judgment held that there is no fundamental right to marry; transgender persons have the right to heterosexual marriage under the existing provisions of the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020; the right to legal recognition of the right to union, similar to marriage or civil union, or conferring legal status on the parties to the relationship, can only be achieved by the enactment of a law and the court cannot impose or order the creation of said regulatory framework. resulting in legal status.
The majority judgment also denied granting any adoption rights to a queer couple as it held that Regulation 5(3) of the CARA Regulation cannot be considered void.
The petitioners requested a review of the majority ruling, alleging that it suffers from errors of law, application of the law contrary to established principles, and grave miscarriage of justice. "The majority ruling erroneously holds that the question of "whether the absence of a law or regulatory framework, or the State's failure to enact the law, constitutes discrimination against which it is protected under Article 15. "It was not argued or urged by the petitioners," the petition reads.
"The majority judgment has not wrongly considered that the prayers of the petitioner do not seek the creation of a new institution of marriage for the petitioners but only to extend the existing legal institution of marriage and its consequent benefits to the petitioners. However, this is re-framing the right requested by the petitioners as a right to the creation of a new institution, which was not requested," the petition adds.
The reason also noted that the majority judgment wrongly refused to consider Regulation 5(3) of the Adoption Regulations 2022 unconstitutional, considering that the law treats children of married couples and unmarried couples differently." However, this is contrary to the established principles of law because, as CJI Chandrachud pointed out in his dissenting opinion, the law does not offer to a child adopted by a married couple the same protection that it does not offer to a child adopted by an unmarried couple. ", reads the plea.
The petition said that the application of the majority ruling has serious consequences for the lives and relationships that the petitioners have built together, which are left outside the protection of the law.
"The dangers of discrimination that have been recognized in the four opinions in the contested rulings are the reality of the petitioners until their equality and parity with heterosexual couples are recognized," the petition adds. "In fact, the petitioners in The petitions headed also have children who also do not have this equal recognition of their family. On this basis, the errors in the majority judgment constitute a widespread miscarriage of justice, which warrants urgent scrutiny by the high court in exercise of its review powers." , the petition urged.
Apart from seeking to set aside the high court's earlier order, the petition sought to consider remedies under sections 15 to 18 of the Special Marriage Act, 1954.
The petition said that reading the provisions of Sections 15 to 18 for the solemnization of "marriages celebrated in other ways" will be available for non-heterosexual marriages, which, in turn, may be allowed to evolve through customary law, prevents a "reading in/down" exercise of any provision of the SMA and gives effect to the high court's recognition of the constitutional rights of non-heterosexual and queer marriages.
A five-judge bench headed by Chief Justice of India DY Chandrachud will hear the petition seeking review of the apex court's order related to marriage equality. The other four judges on the bench will be Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha.
Notably, Justices SK Kaul and S Ravindra Bhat, who retired from office, have been replaced by Justices Sanjiv Khanna and BV Nagarathna. Several review petitions have been filed before the Supreme Court challenging the judgment of the apex court, which has denied the right to equal marriage to queer couples.
One of the review petitions has been presented through lawyers Karuna Nundy and Ruchira Goel, who sought to review the majority ruling dated October 17, 2023, issued by the highest court, which rejected a batch of petitions, seeking recognition same-sex and queer legal. marriage under the Special Marriage Act 1954 (SMA), the Foreign Marriage Act 1969 (FMA), the Citizenship Act 1955, customary law and other applicable laws.
The apex court delivered four separate judgments dated October 17, 2023. The majority judgment was delivered by Justices SR Bhat, Hima Kohli and PS Narasimha. Chief Justice of India DY Chandrachud and Justice SK Kaul have given minority judgments. The majority judgment held that there is no fundamental right to marry; transgender persons have the right to heterosexual marriage under the existing provisions of the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020; the right to legal recognition of the right to union, similar to marriage or civil union, or conferring legal status on the parties to the relationship, can only be achieved by the enactment of a law and the court cannot impose or order the creation of said regulatory framework. resulting in legal status.
The majority judgment also denied granting any adoption rights to a queer couple as it held that Regulation 5(3) of the CARA Regulation cannot be considered void.
The petitioners requested a review of the majority ruling, alleging that it suffers from errors of law, application of the law contrary to established principles, and grave miscarriage of justice. "The majority ruling erroneously holds that the question of "whether the absence of a law or regulatory framework, or the State's failure to enact the law, constitutes discrimination against which it is protected under Article 15. "It was not argued or urged by the petitioners," the petition reads.
"The majority judgment has not wrongly considered that the prayers of the petitioner do not seek the creation of a new institution of marriage for the petitioners but only to extend the existing legal institution of marriage and its consequent benefits to the petitioners. However, this is re-framing the right requested by the petitioners as a right to the creation of a new institution, which was not requested," the petition adds.
The reason also noted that the majority judgment wrongly refused to consider Regulation 5(3) of the Adoption Regulations 2022 unconstitutional, considering that the law treats children of married couples and unmarried couples differently." However, this is contrary to the established principles of law because, as CJI Chandrachud pointed out in his dissenting opinion, the law does not offer to a child adopted by a married couple the same protection that it does not offer to a child adopted by an unmarried couple. ", reads the plea.
The petition said that the application of the majority ruling has serious consequences for the lives and relationships that the petitioners have built together, which are left outside the protection of the law.
"The dangers of discrimination that have been recognized in the four opinions in the contested rulings are the reality of the petitioners until their equality and parity with heterosexual couples are recognized," the petition adds. "In fact, the petitioners in The petitions headed also have children who also do not have this equal recognition of their family. On this basis, the errors in the majority judgment constitute a widespread miscarriage of justice, which warrants urgent scrutiny by the high court in exercise of its review powers." , the petition urged.
Apart from seeking to set aside the high court's earlier order, the petition sought to consider remedies under sections 15 to 18 of the Special Marriage Act, 1954.
The petition said that reading the provisions of Sections 15 to 18 for the solemnization of "marriages celebrated in other ways" will be available for non-heterosexual marriages, which, in turn, may be allowed to evolve through customary law, prevents a "reading in/down" exercise of any provision of the SMA and gives effect to the high court's recognition of the constitutional rights of non-heterosexual and queer marriages.
