Petitioners being members of the transgender community have filed this Writ Petition seeking a declaration that all references to “husband” and “wife” and “male” and “female” in the Special Marriage Act, 1954 be read to include the words “spouse” to include all persons irrespective of their gender identity and sexual orientation. The Writ Petition further seeks a declaration that sections of the Special Marriage Act, 1954 which require a 30-day public notice to be issued and the empowers the Marriage Registrar to receive objections are ultra vires the Constitution of India as they violate among others, the right to privacy and dignity.
The petition is being heard along with a batch of petitions filed in the Supreme Court and transferred from various High Courts that are seeking the legalization of same-sex marriage. While this is the common thread running through all petitions, the impugned legislations differ, with some variations in prayers as well. The legislations impugned before the Court include The Special Marriage Act, 1954, the Hindu Marriage Act, 1955, the Foreign Marriage Act, 1969 and the Indian Citizenship Act, 1955.
The petitioners in this writ petition to argue that gender binary terms in the Special Marriage Act, 1954 pose a hinderance to transgender persons from realizing their right to get married as was affirmed in NALSA v. Union of India (2014) 5 SCC 438. A vast majority of transgender persons in India are unable to get the requisite legal documents to reflect the change in name and gender. Many are also unable to undergo gender affirmation treatments as they can be prohibitively expensive. Reading gender neutral terms such as “spouse” in the Special Marriage Act will ensure that all persons, irrespective of their gender identity, including gender non-conforming persons, can be a part of the legal protections and entitlements granted to married persons in India. Similarly, provisions of the Special Marriage Act that require publishing of a notice post a threat to members of the trans community looking to get married as opposition from within family and the larger society can often leave them in a vulnerable state.
Notice was issued in the writ petition on 20.2.2023 with a direction to tag the petition along with the batch of other petitions covering the same subject matter.
On 12.3.2023, the Union filed their Counter Affidavit.
On 13.3.3023, hearing a total of 19 petitions, the Court passed an order referring the matter to a 5-judge Constitution Bench. The cases were listed for final hearing on 18.4.2023.