Same-Sex Couples Already Vulnerable, Public Notice Of Intended Wedding Under Special Marriage Act A Deterrent: Plea In Supreme Court, Notice Issued
Supreme Court bench comprising Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala today issued notice on the petition moved by a homosexual couple, challenging the provisions of public notice and objection to marriage contemplated under the Special Marriage Act and the Foreign Marriage Act.
The couple, Utkarsh Saxena and Ananya Kotia, live together since 14 years, said that such provisions act as a deterrent to already vulnerable same-sex couples, who are forced to publicise their relationship and risk ostracism, persecution, and violence.
Sections 5-9 of the SMA require that a notice period of 30 days be provided to the Marriage Officer of the District in which one of the parties has resided. “Any person” is vested with the authority during such notice period to object to solemnisation of the marriage. Sections 5 - 10 of Foreign Marriage Act also set out an identical “notice and objections” regime.
Petitioners contend that these provisions not only impose undue burdens upon parties’ right to intimate decision-making but also constitute a disproportionate invasion of citizens’ right to privacy.
“There exist a number of situations in which same-sex partners will be unable to disclose their relationships to their families, or to the world at large. The public-notice-and-objection provisions of the SMA places these individuals in the impossible situation of either being forced to publicise their relationship (and thus risk ostracism, persecution, and violence) or to not marry at all.”
"the effect of sections 5 - 9 of the SMA is such that even if the law was to be interpreted so as to formally cover same-sex relationships, the right to marry would remain illusory for a large number of individuals, on grounds only of their sexual orientation. Even at present, though the right to marry under SMA exists for inter-faith couples, the notice-and-objection requirements have made access to that right illusory."
The plea also points that similar requirements are absent for marriages solemnised under personal laws that are unregistered or sought to be registered under the SMA.
The plea further seeks to make the provisions of Special Marriage Act and Foreign Marriage Act gender neutral, so as to apply to all relationships, regardless of the respective partners’ gender, sexual orientation, and sexual identity.
It challenges the constitutionality of Sections 2(b) and 4(c) of SMA, insofar as these sections have been construed as using the terms “man” and “woman”, and “male” and “female”, to restrict the operation of the SMA to cis-gendered heterosexual relationships.
It is prayed that where the SMA uses the term “man” and “male”, it ought to be read to include “women” and “females” (including trans-women).
Similarly challenge is made against Sections 4(c) which uses the terms “bride” and “bridegroom”, and consequently limits its application to heterosexual marriages.
Matter was argued by Advocate Akhil Sibal.
Petition is filed through Advocates Shadan Farasat and Ravi Kumar Rahu.
The petition has been drafted by Advocates Gautam Bhatia, Utkarsh Saxena, Abhinav Sekhri and Hrishika Jain
Case Title: Utkarsh Saxena and Anr. v. Union of India