Recognition of same-sex marriage: Delhi high court transfers petitions to the Supreme Court

The Delhi High Court transferred petitions on the recognition of same-sex marriage to the Supreme Court, pursuant to the latter’s decision to transfer all such petitions to itself. The Supreme Court will hear the matter on March 13. 


TODAY, the Delhi High Court division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad transferred pending petitions on recognising same-sex marriage to the Supreme Court, including the one filed in Abhijit Iyer Mitra & Ors versus Union of India. The division bench was informed that the Supreme Court has sought to transfer all petitions from high courts on the subject of same-sex marriage.

On January 6, a three-judge bench of the Supreme Court comprising Chief Justice of India (CJI) Dr. D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala transferred all pending petitions pertaining to the subject before high courts including the ones pending before the Delhi and Kerala high courts to itself.

The petitions pending before the Supreme Court also include one in which it had issued notice last month. The petition was filed by a gay married couple, Sameer Samudra (an Indian citizen) and Amit Gokhale (who is a citizen of the United States of America) who got married on September 18, 2010, and were denied registration of their marriage under the Hindu Marriage Act, 1955 (HMA) and the Foreign Marriage Act, 1969 by the Registrar of Marriages. The court had tagged the matter with a batch of petitions being heard by the bench of CJI Dr. Chandrachud.

In 2021, in the batch of petitions before the Delhi high court, the Union Government in an affidavit opposed the recognition of same-sex marriage. It claimed that marriage is a bond between two binary genders only.

In Abhjit Iyer Mitra’s petition, filed in 2020, it was argued that despite homosexuality being decriminalised by the Supreme Court in Navtej Singh Johar versus Union of India (2018), same-sex marriage is still not being allowed under the provisions of the HMA. According to the petitioners, a plain reading of Section 5 of the HMA does not distinguish between heterosexual and homosexual marriage as it says, “A marriage may be solemnised between any two Hindus”. Thus, marriage can be solemnised between “any two Hindus”, irrespective of gender.

If the right to marriage is not extended to homosexual couples apart from heterosexual couples, it goes against the constitutional mandate of non-arbitrariness, according to the petition. The petition similarly raises a plea that there is no statutory bar even under the Special Marriage Act, 1954 against same-sex marriage. Lastly, the petition also raises concern over marital benefits, including financial rights, not being extended to homosexual couples as a consequence of the non-recognition of same-sex marriage.