Justice Sanjiv Khanna of Supreme Court recuses from hearing same-sex marriage review petition

    Supreme Court and same sex marriage

    Supreme Court and same sex marriage 

    Justice Sanjiv Khanna of Supreme Court on Wednesday recused from hearing review petitions against the Supreme Court’s October 2023 verdict that refused to recognize the right of same-sex couples to enter into marriages or have civil unions.

    A five-judge bench led by Chief Justice of India (CJI) DY Chandrachud had assembled to hear the review petition in chamber at 1:30 pm today.

    Justice BV Nagarathna, Justice Sanjiv Khanna, CJI DY Chandrachud, Justice Hima Kohli and Justice PS Narasimha

    The matter was mentioned on Tuesday by Senior Advocate Neeraj Kishan Kaul before a Bench led by CJI DY Chandrachud He had requested an open court hearing.

    The Court, however, asserted that Constitution Bench review would have to be in-chambers and slated the matter for hearing at 1:30 pm today.

    In November last year, Senior Counsel and former Attorney General Mukul Rohatgi too had made an urgent mentioning seeking open-court hearing of the review petitions in the marriage equality case.

    A Constitution Bench led by the CJI Chandrachud and also comprising Justices Sanjay Kishan KaulS Ravindra BhatHima Kohli and PS Narasimha had on October 17, 2023 ruled against recognising same-sex marriages.

    The Court had said that the law as it stands today does not recognise the right to marry or the right of same-sex couples to enter into civil unions, and that it is upto the parliament to make laws enabling the same.

    The Court had also held that the law does not recognise rights of same-sex couples to adopt children.

    The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha delivering a separate concurring opinion.

    CJI Chandrachud and Justice Kaul had delivered separate dissenting judgments.

    All the judges were unanimous in holding that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right.

    The Court had also unanimously turned down the challenge to provisions of the Special Marriage Act.

    The majority of Justices Bhat, Kohli and Narasimha had also held that civil unions between same sex couples are not recognised under law and they cannot claim right to adopt children either.

    However, CJI Chandrachud and Justice Kaul in their separate minority opinions had ruled that same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits.

    In this regard, they had also said that such couples have the right to adopt children and had struck down adoption regulations to the extent it prevented the same.

    Review petitions were filed against that verdict which came to be heard today in chamber when Justice Khanna chose to recuse.

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