On 20 February 2023, the Supreme Court issued a notice in a plea filed by members of the transgender community seeking recognition under the Special Marriage Act (SMA) 1954. It asked that all references to “husband”, “wife”, ‘male’ and ‘female’ in the Special Marriage Act (SMA) be read to include the words ‘or spouse’. This would allow for the act to be inclusive of all persons irrespective of their gender identity and sexual orientation.
Senior Advocate Jayna Kothari and Advocate Rohit Sharma appeared on behalf of the petitioners.
The plea said that transgender persons in India are unable to marry unless they have their names and gender in all their legal documents changed. “They (transgender persons) are unable to get married under the SMA, unless their ID cards and legal documents show their gender as ‘male’ or ‘female’ because the SMA still refers to the binary notion of genders of ‘male’ and ‘female’,” read the plea.
Additionally, the Special Marriages Act requires the couple to publish a notice informing the public about their intent to marry. The couple is then expected to wait for 30 days to receive objections. Based on the opposition received, the Marriage Registrar decides whether the couple should be allowed to register their marriage. This provision can and will be misused by parents, relatives, exes, or any third party who takes issue with the marriage. The petition, hence, asks that Sections 5, 6, 7, 8, 9, 10 and 46 of the Special Marriage Act 1954 be recognized as unconstitutional and as being violative of Articles 14,15,19 and 21 of the Constitution. “These provisions allow for family members who are opposing marriages of transgender persons, either being their own family members or the family members of the partners of trans persons, to file objections and oppose their marriage”, it said.
Further, the plea said that the Supreme Court in its decision in National Legal Service Authority vs. Union of India expressly recognized the right to the self-determination of one’s gender identity as male, female or transgender and called for the recognition of the rights of transgender persons under Part III of the Constitution including the rights to marry, have property, adoption and have a family. As 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 their continued existence violates the same and enforcement of Sections 4, 22, 23, 27 and 44 and section 5, 6, 7, 8, 9, 10 and 46 of the SMA, said the petition.
“We will issue Notice and Tag”, said the Bench led by Chief Justice DY Chandrachud also comprising Justice PS Narasimha and Justice JB Pardiwala while hearing the Public Interest Litigation.
On January 6, a bench led by Chandrachud clubbed and transferred to itself all petitions pending before different high courts across the country on the issue of grant of legal recognition to same-sex marriages. The Court asked the Centre to file its joint reply to all the petitions on the issue by February 15 and directed that all the petitions will be listed in March.
Striking down the above mentioned provisions would make the Special Marriage Act gender-neutral, thereby allowing trans people the ability to register for marriage easily.
