The Special Marriage Act (SMA) of 1954 refers to 'husband' and 'wife' and 'male' and 'female', but today the Supreme Court issued a notice in response to a petition from members of the transgender community asking that the words 'or spouse' be read to include all people, regardless of their gender identity and sexual orientation.
While hearing the Public Interest Litigation, the bench, chaired by Chief Justice DY Chandrachud and included Justices PS Narasimha and JB Pardiwala, declared, "We will issue notice and tag." The Issue Notice has an 8-week return period. Dasti is additionally acceptable. The court commanded that a counter-affidavit be submitted within four weeks.
On behalf of the petitioners, senior attorney Jayna Kothari and attorney Rohit Sharma made an appearance. On January 6, a Supreme Court panel headed by Chief Justice DY Chandrachud gathered and transferred to itself all pending petitions in various high courts across the nation concerning the legal recognition of same-sex unions.
The Court ordered that all of the petitions be listed in March and requested that the Center submit its joint response to all of the petitions on the subject by February 15. The argument made in the petition was that only transgender people in India who have had their names and genders changed in all of their official documents to reflect their gender as females are allowed to get married.
Supreme Court Issues Notice In Plea Seeking Recognition Of Transgender Persons
"They (transgender people) are unable to get married under the SMA unless their ID cards and legal documents show their gender as "male;" or "female," the complaint read. This is because the SMA still refers to the binary notion of genders as "male" and "female."
The petition further requests that the Special Marriage Act of 1954's Sections 5, 6, 7, 8, 9, 10, and 46, which impose requirements for the publication of a 30-day public notice and give the Marriage Registrar the authority to receive objections and make decisions regarding those objections, be declared unconstitutional as a violation of Articles 14, 15, 19, and 21 of the Constitution.
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These provisions enable the family members of transgender people, whether they are their own relatives or the relatives of their partners, to file objections and oppose their marriage, according to the statement.
The argument further stated that the Supreme Court explicitly recognised the right to gender identity self-determination in its ruling in National Legal Service Authority v. Union of India and called for the recognition of transgender people's rights under Part III of the Constitution, including the right to marry, own property, adopt children, and start a family.
People who identify as transgender are denied the legal and fundamental right to marry the person of their choice throughout the nation. This right is available to everyone in India but is only denied to the transgender community because of their gender identity.
"Since the right to gender identity and autonomy is protected under Articles 14, 15, 19, and 21 of the Constitution, transgender persons cannot be deprived of their right to marry, and the continuation of Sections 4, 22, 23, 27, and 44 and Sections 5, 6, 7, 8, 9, and 10 and 46 of the SMA violates this right," the petition stated.
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