Same-sex marriage: SC judge recuses from hearing review petitions because of ’personal difficulties’

Justice Sanjiv Khanna, a member of the five-judge bench that was scheduled to consider the review petitions on the same-sex marriage verdict on Wednesday, recused on the grounds of "personal difficulties". 

Chief Justice of India DY Chandrachud will now reconstitute the bench to hear the case.

A five judge bench, comprising CJI DY Chandrachud, Justices Sanjiv Khanna, Hima Kohli, BV Nagarathna and PS Narasimha, were scheduled to consider in-chambers the batch of pleas seeking review of its last year's judgment declining legal recognition to same-sex marriage on Wednesday, July 10.

Justices SK Kaul and S Ravindra Bhat, who have retired from the bench have been replaced by Justices Sanjiv Khanna and BV Nagarathna.

The pleas sought a review of the October 2023 verdict, which refused to accord legal recognition to same-sex marriage.

On Tuesday, the Supreme Court refused to give an open court hearing on the review petition. A bench headed by Chief Justice DY Chandrachud said that the constitution bench review is heard not in the open court but in chambers.

Meanwhile, various review petitions have been filed in the Supreme Court challenging its judgement which declined marriage equality right to queer couples.

One of the review petitions was filed through advocates Karuna Nundy and Ruchira Goel. It sought to review the majority judgment dated October 17, 2023, passed by the Supreme Court, which rejected a batch of petitions seeking legal recognition of same-sex and queer marriage.

What SC said on same-sex marriage

The Supreme Court delivered four separate judgments on October 17, 2023. Justices SR Bhat, Hima Kohli, and PS Narasimha delivered the majority judgment. Chief Justice of India DY Chandrachud and Justice SK Kaul delivered minority judgments.

The majority judgement held that: 

1. There is no fundamental right to marry.
2. Transgender persons have the right to heterosexual marriage under the provisions of the Transgender Persons (Protection of Rights) Act, 2019 and the Transgender Persons (Protection of Rights) Rules, 2020.
3. Entitlement to legal recognition of the right to union—akin to marriage or civil union—or conferring legal status upon the parties to the relationship can be only through “enacted law,” and the court cannot enjoin or direct the creation of such a regulatory framework resulting in legal status. 
4. The judgement also denied giving any adoption right to queer couples as it held that Regulation 5(3) of the CARA Regulations cannot be held void.

(With inputs from agencies)