[13][14][15] As the opponents raised concerns over the well-being of children in same-sex families, independent professional association, the Indian Psychiatric Society, supported marriage and adoption rights for sexual and gender minority individuals based on scientific evidence.
[31] Four sexual and gender minority individuals, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvas, filed a petition seeking legal recognition of marriage in the Delhi High Court on 8 September 2020.
[69] The Supreme Court held that while the State can impose reasonable restrictions based on decency and morality, the limitations should be rational and tolerant of unpopular social views in S. Khushboo v. Kanniammal (2010) and Navtej Singh Johar v. UOI (2018).
[24] The Supreme Court held that atypical families, such as domestic, unmarried partnerships or relationships between sexual and gender minority individuals, deserve equal protection under the law guaranteed in Article 14 in Deepika Singh v. Central Administrative Tribunal (2022).
[24] Considering the cultural stereotypes based on sex and gender and their role in discriminatory legislation, the Supreme Court held that judicial scrutiny to weave out discrimination must be strict in Anuj Garg v. Hotel Association of India (2007).
[58] Relying on the right to personal liberty and privacy, Allahabad High Court read down the notice and objection provision of the Special Marriage Act as a directory and not mandatory in the ruling of Safiya Sultana v. State of Uttar Pradesh (2021).
As the vast majority of Indian laws define ‘family’ to be persons related by marriage, birth or adoption, the petitioners have presented a compelling case for legal recognition of their marital relationships to formalise access to rights and obligations.
Relying on these precedents, the petitioners argued that unmarried sexual and gender minority individuals deserve recognition and protection of the law when they seek to nominate any person beyond the constraints of biological or adoptive families.
[97] In anticipation of an opposition prophesy that upholding everybody's fundamental right to marry would diminish the worth of opposite-sex marriages, petitioners point to the conclusion of the majority on the same discussion in Obergefell v. Hodges (2015), “it is wholly illogical to believe that state recognition of the love and commitment between same-sex couples will alter the most intimate and personal decisions of opposite-sex couples.”[97] While deciding the Sunil Batra v. Delhi Administration (1978), the Supreme Court held that the despite the lack of the Due Process Clause in the Constitution of India same consequence ensued after the decisions in R.C.
Affirming the verdict of Sunil Batra v. Delhi Administration (1978), the Supreme Court held that substantive due process is applied to the fundamental right to life and liberty in Mohd Arif v. The Registrar (2014).
[98] The Supreme Court recognised the principles of comity of nations in the ruling of Mirza Ali Akbar Kashani v. United Arab Republic (1966), Tractor Export v. Tarapore & Co. (1969) and Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984).
When a patient cannot communicate their wishes due to being in a persistent vegetative state, having a form of dementia or similar illness, or being under anaesthesia, legally unrecognised spouses and families of sexual and gender minority individuals are not allowed to make healthcare decisions for them.
[152] Subsequently, most sexual and gender minority individuals in India grow old facing life without lawful companionship and confronting the reality of loneliness, which research shows carry a risk comparable to if not exceeds, that of other well-accepted factors, including smoking up to 15 cigarettes a day, obesity, physical inactivity and air pollution.
[130] More directly, the legal recognition of the right to marry would extend the previously discussed benefits, entitlements, privileges and obligations to couples from sexual and gender minority communities and improve their quality of life.
[162] A study found that prejudice in society, specifically among healthcare providers, and experiencing negative consequences when disclosing their identity was associated with lower access to HIV preventive measures among sexual and gender minority individuals.
[180] On 12 March 2023, the Union Government under the leadership of the Bharatiya Janata Party filed a counter-affidavit in the Supreme Court, opposing extending the right to marry to sexual and gender minority individuals in India.
To make their case, they point to the Supreme Court ruling in Navtej Singh Johar v. UOI (2018) that explicitly differentiated and excluded marital relationships while reading down Section 377 of the Indian Penal Code for violating fundamental rights.
They point to the Supreme Court decision that explicitly differentiated and excluded marital relationships while reading down Section 377 of the Indian Penal Code for violating Article 21 in Navtej Singh Johar v. UOI (2018).
Only a legislature, which reflects the collective wisdom of the nation, can enact legislation based on societal values, beliefs and acceptability, and cultural history to govern, regulate, permit or prohibit human relationships, including issues such as marriage, adoption, divorce, and maintenance.
[190] The DCPCR recommended the following guidelines to ensure the well-being of children in same-sex adoptions: Islamic organisation Jamiat Ulema-e-Hind and Telangana Markazi Shia Ulema Council intervened in the case opposing the extension of the right to marry and establish a family to sexual and gender minority individuals in India on socio-legal and religious grounds.
[28] Islamic organisation Telangana Markazi Shia Ulema Council intervened in the case opposing the extension of the right to marry and establish a family to sexual and gender minority individuals in India on socio-legal and religious grounds.
[197] Senior Advocate Anand Grover focused his arguments on the concept of 'intimate association' in US Courts, citing relevant cases such as Griswold v Connecticut (1965), Roberts v. United States Jaycees (1984), and Obergefell v. Hodges (2015).
[199] Expressing concerns about the Union Government's argument, Senior Advocate Vishwanathan highlighted the harmful consequences of denying the right to marry for sexual and gender minority individuals based on their inability to have children.
[197] Senior Advocate Singhvi outlined several motives behind people's desire for marriage, including seeking societal recognition and acceptance of their relationships, ensuring safety and security, finding personal fulfilment, and embracing a fundamental aspect of family life.
He cited the UK House of Lords case, Ghaidan v. Godin-Mendoza, to advocate for an interpretation of statutes that aligns with the constitution, emphasizing the significance of fundamental rights over legislative intent and statutory language.
[211] Kanav N. Sahgal pointed out that the retired judges relied on the report that identified stigma, homophobia, and discrimination as a cause for the increased susceptibility of gay and bisexual men to HIV infections to make their baseless argument.
[255] Hansal Mehta, a filmmaker who directed the movie Aligarh based on the life of Ramchandra Siras, an Indian gay professor, recently expressed his support for legal recognition of marriage between sexual and gender minority individuals.
[233][259] On 14 March 2023, during the press conference at the end of Akhil Bharatiya Pratinidhi Sabha, RSS General Secretary Dattatreya Hosabale backed the BJP-led Union Government's opposition to the extension of the right to marry for sexual and gender minority individuals in India.
[234][262][263] Shri Sanatam Dharm Pratinidhi Sabha and Akhil Bhartiya Sant Samiti sought to intervene as an opponent to extending the right to marry and establish a family to sexual and gender minority individuals in India.
[264] On 1 April 2023, Mahmood Asad Madani representing the Jamiat Ulema-e-Hind sought to intervene as an opponent to extending the right to marry and establish a family to sexual and gender minority individuals in India.