Another couple has moved a PIL before the Supreme Court seeking recognition for all members of the LGTBQ+ community, the fundamental right to marry any person of their choice, irrespective of gender identity and sexual orientation.
They pray that the Special Marriage Act, which was meant to be a secular legislation for institution of marriage, be made gender-neutral by reading down any gender or sexuality based restrictions.
It points that Section 4 of the Act, though permits any two persons to solemnize a marriage, the subsequent conditions therein restrict its application only to males and females.
"The use, in Section 4(c) of the words 'male' and 'female', as well as the use of gendered language such as the terms 'husband/wife' and 'bride/bridegroom' in other sections of the Act, limit the access to marriage to a couple comprising one 'male' and one 'female'. Such limiting of access, is violative of the fundamental rights of LGBTQ+ individuals and 1s unconstitutional," the plea states.
The plea further avers that the right to many a person of one's choice is a fundamental right guaranteed under the Constitution of India to each "person". However, the legal framework governing the institution of marriage in this country does not presently allow members of the LGBTQ+ community to many the person of their choice
This is violative of the fundamental rights guaranteed under Part III of the Constitution, including Articles 14, 15, 19(1)(a) and 21, they contend.
Parth Phiroze Mehrotra and Uday Raj Anand have been in a relationship with each other for the last 17 years. They claim that they are presently raising two children together, but since they cannot legally solemnize their marriage, it has resulted in a situation where both Petitioners cannot have a legal relationship of parent and child with both their children.
Reliance is placed on NALSA v. Union of India, where Supreme Court categorically held that our Constitution protects non-binary individuals and that the protections envisaged under Articles 14, 15, 16, 19 and 21 cannot be restricted to the biological sex of "male" or "female".
It also refers to Navtej Singh Johar and Ors. v. Union of India, which held that homosexuals have the fundamental right to live with dignity, are "entitled to protection of equal laws, and are entitled to be treated in society as human beings without any stigma being attached to any of them."
Senior Advocates Mukul Rohatgi and Saurabh Kripal will be appearing for the petitioners before the Supreme Court.