Supreme Court’s Verdict on the Same-Sex Marriage; No Fundamental Right to Marry

On 17th October, 2023, in the matter of Supriya Chakraborty and anr. vs. Union of India, a five-judge bench of the Supreme Court of India delivered its judgement on the issue of same-sex marriage in the country. Three out of the five-judge Constitution bench of the SC refused to recognise the rights of the same-sex couple to enter into a legal & lsquo marriage'. Thus, same-sex marriage was not legalised through the judgement delivered. CJI Chandrachud and Justice Kaul delivered separate and dissenting judgements. The Constitution Bench comprised of the Chief Justice of India - DY Chandrachu, along with Justices Sanjay Kishan Kaul, Ravindra Bhatt, Hima Kohli and PS Narasimha. Four separate judgements were rendered by the Bench. It was held that there is no unqualified right to marry for the same-sex couples and that they cannot claim it as a fundamental right. It was also unanimously held that the provisions of the Special Marriage Act need not be challenged.

The Majority Opinion

Given below is the majority opinion held by the Bench:

1. Right to Marriage : It was held that there is no unqualified right to marry except that which is recognised by statutes and customs.

2. No Right to Civil Union : Justices Ravindra Bhat, Hima Kohli and PS Narasimha held that civil unions between same-sex couples are not recognised by statutes or customs and can only be conferred through enacted law.

3. Right to Relationship without Legal Status : Same-sex and Queer couples have the right by all means to relationships - emotional, mental or sexual, drawn from the right to privacy, choice and autonomy. However, no legal status of such relationship or union shall be conferred.

4. Compensatory Benefits and Social Welfare Entitlements: The government will have to address and remove the indirect discriminatory impact on queer couples, in terms of right to compensatory benefits or social welfare entitlements for which marital status is a relevant eligibility criteria.

5. Committee to be Set up by the Govt. : The Central Govt. shall set up an HPC (high-powered committee) to examine in a comprehensive manner, the relevant factors related to same-sex marriage. The views of all stats and ITs shall be taken into regard.

6. Marriage of Transgender persons: Transgender individuals in heterosexual relationships have the right to marriage.

7. Right of Adoption of Children : Same-sex / queer-couples would not have the right to adopt under the existing laws. Regulation 5(3) of the CARA Regulations (Central Adoption Resource Authority Regulations), which states that unmarried individuals cannot adopt, was held to be legal.

8. Involuntary Medical Treatment : Queer persons shall be ensured that their right to cohabit is not interfered with. Moreover, the States are to ensure that transgender and queer persons are not forced into any involuntary medical/surgical treatment.