The story so far: On October 17, a five-judge Constitution Bench of the Supreme Court, declined to legalise same-sex marriage, leaving it to Parliament to legislate on the subject. The Bench ruled that there is no fundamental right to marry, and the court cannot intervene. Though all five judges accepted that it was time to end discrimination against same-sex couples, they failed to reach a consensus on giving queer couples the status of a legally recognised “civil union,” with a majority of three judges holding that any legal status to such a union can only be through enacted law.
What did the petitioners want?
The petitioners had sought a ruling by which the Special Marriage Act (SMA), 1954, which provides for a civil marriage for couples who cannot marry under their personal law, should be interpreted as gender-neutral, thus allowing same-sex couples to marry under it. The SMA, they argued violated Articles 14, 15, 19, 21 and 25 by not allowing marriage between same-sex, gender non-conforming, LBGTQIA+ couples, and sought the words “husband” and “wife” as well as any other gender-specific term to be substituted by the word “party” or “spouse”.
