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2-Judge Bench at SC May Hear Challenge to Notice Provision under Special Marriage Act

The Supreme Court is currently hearing several pleas seeking legal sanction for same-sex marriages. During the hearing on Thursday, the court indicated that it might refer the challenge to the 30-day prior notice provision in the Special Marriage Act, 1954 to a two-judge bench. The act provides a legal framework for the marriage of people belonging to different religions or castes and governs a civil marriage where the state sanctions the marriage rather than the religion. According to Section 5 of the act, the parties to the marriage must give notice of not less than 30 days in writing to the marriage officer of the district in which at least one of them has resided.

During the hearing, the Chief Justice of India commented on the notice provision, stating that ‘the right to marry, even of a heterosexual couple, is illusory if one has to step in and give say 15 days notice…have people raise objections.’ However, he also noted that the provision was ‘irrelevant’ to the issue of whether same-sex couples should have the right to marry. Justice Chandrachud added that the notice provision was an important social issue but not necessarily a constitutional issue for a constitution bench.

The bench also discussed the possibility of constitutional issues being decided by a two or three-judge bench. Justice Bhat referred to the 2015 judgment in the Shreya Singhal case, in which the court had struck down section 66A of the Information Technology Act, 2000, and noted that it was not by a five-judge bench. However, the Chief Justice of India urged the lawyers to continue with their submissions, and the hearing remained inconclusive. The court will resume the hearing on May 3.

During the hearing on Wednesday, the Centre had requested that the court leave the questions raised in the pleas seeking legal sanction for same-sex marriages to Parliament, as the subject was complex and would require going into 160 provisions of different laws.

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