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Supreme Court has been further told that Special Marriage Act is ultra vires the Constitution of India to the extent that it discriminates between same sex couples as opposed to opposite sex couples denying same-sex couples both legal rights as well the social recognition and status that flow from marriage.
The Supreme Court today issued notice in the plea moved by a gay couple seeking legal recognition of same-sex marriage under the Special Marriage Act, 1954.
The plea also seeks issuance of appropriate directions to the authorities concerned to allow them to solemnize their marriage.
A CJI Chandrachud led bench has thus issued notice to the Central Government and the Attorney General for India, returnable in four weeks.
Senior Advocate Mukul Rohatgi appearing on behalf of the petitioner-couple submitted before a bench also comprising Justice Hima Kohli that the issue is a sequel to Navtej Singh Johar judgment.
Absence of a legal framework which allows members of the LGBTQ+ community to marry any person of their choice has been raised by the instant plea.
It is the petitioner's case that the right to marry a person of one's choice is a fundamental right guaranteed under the Constitution of India to each "person" and has been recognized explicitly by the Supreme Court as well.
Last year, the Delhi High Court had issued notice on a plea seeking a declaration that the right to legal recognition of a same sex marriage or queer marriage is a fundamental right under Articles 14, 15, 19 and 21 irrespective of a person’s gender, sex or sexual orientation.
The petition was filed in pursuit of getting Overseas Citizen of India (“OCI”) card to same-sex spouse of an Indian citizen to visit India amid the restrictions imposed due the Covid-19 pandemic.
Submitting that consensual sexual acts between persons of the same sex had already been decriminalized by the Supreme Court in Navtez Singh Johar's case, High Court was told that the right to marry a person of one’s choice as an essential component of the right to autonomy, privacy within Article 21 has been recognized by a catena of judgments in India as well as by foreign courts.
In the present matter, the petitioners were represented by Sr. Adv. Mukul Rohatgi, and Sr. Adv. Mr. Saurabh Kirpal briefed by a team from Karanjawala & Co. Advocates including Principal Associate Tahira Karanjawala, along with Niharika Karanjawala, Vardaan Wanchoo, Shreyas Maheshwari and Ritwik Mohapatra.
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