Supreme Court dismisses review plea seeking same-sex marriage, adoption, surrogacy for LGBTQ

The Supreme Court has dismissed a plea seeking review of its order which had rejected a petition seeking various civil rights such as same-sex marriage, adoption and surrogacy for the LGBTQ community.


A three-judge bench headed by Justice N V Ramana, in an in-chamber decision on July 11, dismissed the review plea filed by Tushar Nayyar which had sought grant of civil rights to the members of the LGBTQ (lesbian, gay, bisexual, transgender, transsexual, queer) community.

“This review petition has been filed against order dated October 29, 2018 whereby the Writ Petition (of Nayyar) was dismissed.

“We have considered the review petition on merits. In our opinion, no case for review of order dated October, 29, 2018 is made out. Consequently, the review petition is dismissed on merits,” the bench, which also comprised Justices S Abdul Nazeer and Deepak Gupta said recently.

The top court, on October 29, 2018, had dismissed the fresh plea of Nayyar on issues pertaining to the LGBTQ members saying that a five-judge constitution bench headed by the then Chief Justice Dipak Misra had already dealt with the batch of petitions on homosexuality.

“We are not inclined to entertain this petition after the decision of this Court in Navtej Singh Johar v Union of India decided on September 6, 2018,” it had said.

The constitution bench, on September 6, 2018, had unanimously held that consensual sex among adult homosexuals or heterosexuals in private space is not a crime.

It had also struck down part of a British-era law, section 377 of the IPC, that had criminalised the consensual unnatural sex on the grounds that it violated the constitutional right to equality and dignity.

Nayyar had filed the fresh plea saying that his petition was not limited to the issue of decriminalising the consensual gay sex only and had raised host of issues including the issue of “non-recognition of same-sex marriages” under the Special Marriages Act, 1954 and denial of adoption and surrogacy rights to the members of the LGBTQ community members.

However, the plea was dismissed on October 29, 2018 leading to filing of the review petition which has been dismissed.

The review plea had sought civil rights of the LGBTQ community as part of the basic human rights and said that these rights were not addressed in the apex court’s judgement on Section 377 of the IPC which had criminalised consensual gay sex.

It had sought recognition of their rights to same-sex marriages, adoption, surrogacy, IVF and directions so that the community can serve openly in the army, navy and air force.

“LGBTQ rights are not recognised as part of human rights. Non Recognition of same-sex marriages (Indian Special Marriages Act, 1954), availability of adoption, surrogacy, IVF (for LGBTQ only) is violative of Article 14, 15, 19, 21, 29. Discrimination solely on basis of sexual orientation violates Article 14, 15, 21 in relation to Army, Navy, Air force Act.

“Other instances of indirect discrimination are not addressed in the Navtej Singh Johar case. People in the military are not allowed to serve openly. Heterosexual people end up marrying LGBT people, end up consummating marriage with them, which harms heterosexual people most. Gay women have it worst,” the plea said.

The definition of marriage for LGBTQ had not been addressed in the apex court’s judgement of September 6, 2018, it said.

The plea said both heterosexuals in an opposite-sex relationship and homosexuals in a same-sex relationship are similarly circumstanced as the general nature of relationship is romantic and sexual one, either at the time of marriage as in a love marriage or is sought or hoped to be as in the case of arranged marriage.

Ecuador Constitutional Court Recognizes Same-Sex Marriage

In a landmark ruling, the Constitutional Court of Ecuador has recognized same-sex marriage. In Ecuador, the Civil Code defined Marriage as a ‘solemn contract by which a man and woman’. The case reached the Constitutional court as a same-sex couple Efraín Enrique Soria Alba and Ricardo Javier Benalcázar Tello, challenged the refusal by the registry to register their marriage on the ground that marriage exists only between a man and a woman ”

The court [5:4] found that there is no constitutional purpose to exclude from marriage the same-sex couples. It also observed that the exclusion to marriage of same-sex couples is unjustified, discriminatory and unconstitutional. Judge Ramiro Avila Santamaría penned the majority judgment. He said: “There are people of the same sex who demand the recognition of the right to marriage, considering it important in their life plans and invoking rights such as dignity, equality, identity and freedoms. This requirement, which did not exist or were not considered at the time of translating the legal texts, requires putting the current constitutional norms and legal norms, and adapt their content and interpretation to the current requirements.

“The understanding of marriage as an exclusive right of the heterosexual couples is a limitation that prevents access to rights that can mean, if that is decided by the people, better living conditions and greater security in the protection of the family through marriage. Allowing marriage to same-sex couples extends the possibilities of individual autonomy and the free development of the personality of the people with different sex-generic identity.” The majority judges observed that it is the people who take decision of their marriage and not the state. It said: “In relation to the right to form a family and choose the means to achieve it, the State should not intervene to prohibit marriage of people of the same sex. An interference this type, although legal, could be considered arbitrary.. The decision to form a family corresponds to the freedom of the private life of the people. In the same way, choosing the means to form a family, which can be the marriage, should be a free and voluntary decision of the people and not of the State.”

Same-sex marriage drawing overseas couples to New Zealand

More than a third of the same- sex couples getting married under a new law in New Zealand are coming from overseas, authorities said Tuesday.

In the period till the end of September, 40 of the 177 same-sex marriages involved couples from abroad, Xinhua reported from Statistics New Zealand.

Out of these, 61 were between women and 56 between men.

New Zealand became the first country in the Asia-Pacific region and the 13th in the world to allow same-sex marriages when it passed the Marriage (Definition of Marriage) Amendment Act earlier this year, and the law came into effect Aug 19.

In the quarter ending September, a total of 2,681 opposite-sex marriages were registered in New Zealand, but overseas resident couples accounted for just 10 percent of these, Statistics Minister Maurice Williamson said in a statement.

Figures released by the registrar-general a month after the law came into effect showed more than a quarter of the same-sex couples to be married were from abroad, including countries such as China, the US and Britain.

(Source: IANS)