On December 14, a division bench of the Supreme Court comprising Chief Justice DY Chandrachud and Justice PS Narasimha issued notice in a petition filed by a same-sex couple seeking legal recognition of their marriage in India. The petitioners in this case—an Indian national and a citizen of the United States of America (USA)—married and registered their marriage in the USA in 2014 and now seek to register their marriage under the Foreign Marriage Act of 1969.

The petitioners are seeking a declaration that members of the LGBTQIA+ community have the same right to marriage as their heterosexual counterparts. The petition claims that denying such a declaration violates the rights of the LGBTQIA+ community guaranteed by Articles 14, 19, and 21 of Part III of the Indian Constitution. To back up their case, the petitioners cited several Supreme Court decisions, including Navtej Singh Johar v. Union of India (2018) and NALSA v. Union of India (2015).

They are requesting a declaration that they have the legal right to register their marriage under Section 5 of the Hindu Marriage Act of 1955 and Section 17 of the Foreign Marriages Act of 1969. They also claim that the Indian Embassy's refusal to recognise their marriage is unconstitutional. The petition submits while tracing the history of same-sex marriage in India.

"Works of scholars like Saleem Kidwai and Ruth Vanita tell us that Ancient Indian texts and inscriptions and paintings on temple walls that clearly homosexuality is not an aberration imported from modern Europe or medieval West Asia, but that in fact queerness had a large and looming presence in India. It was only the modern era, after the British direct rule in India, in after the first war of independence in 1857, that non-heterosexual sexual relations were criminalized."

The petition claims that as British rule became more powerful in the Indian subcontinent in the early nineteenth century, local notions previously accepted in India were only deemed barbaric, and that it was the British who imposed their idea of a 'Victorian, heteronormative view of sexual and marital relationships' through laws such as Section 377 of the Indian Penal Code, 1860.

According to the petition, same-sex marriage is legally performed and recognised (nationally or in parts) in approximately 32 countries, citing international jurisprudence. The petition also highlighted provisions of various international conventions to which India is a signatory in order to emphasise the universal acceptance of same-sex marriages. Article 16 of the Universal Declaration of Human Rights, for example states: "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution."

The petition also claims that the right to marry whoever one wants is well established in Indian law. It states that, despite the fact that the right to marry is not recognised as a fundamental right under the Indian constitution or any other statute, the Supreme Court has recognised it as such in a number of decisions. As an example, the case of Shafin Jahan v. Asokan K.M. has been cited. As per the petition, CJI DY Chandrachud's opinion in the judgement states "Deprivation of marital status is a matter of serious import and must be strictly in accordance with law. The right to marry a person of one's choice is integral part of Article 21 of the Constitution."

The petition claims that the refusal to recognise LGBTQIA+ people's right to marry people of the same gender is a violation of Article 14. The petition also claims that the failure to recognise the right to same sex Marriage deprives members of the LGBTQI+ communities of social recognition for their unions, resulting in them being treated as a lower class of citizens.

Case Title: Sameer Samudra And Anr V. Union Of India And Ors 
Citation: W.P.(C) No. 1105/2022