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Business News/ News / India/  Same-Sex Marriage Verdict: SC grants equal rights to same-sex couples without legalizing marriage
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Same-Sex Marriage Verdict: SC grants equal rights to same-sex couples without legalizing marriage

Same-Sex Marriage Verdict: The Supreme Court of India allows transgender individuals to marry opposite gender, upholds right to choose life partner.

Same-Sex Marriage Verdict LIVE Updates: SC delivers judgment today. Premium
Same-Sex Marriage Verdict LIVE Updates: SC delivers judgment today.

The Supreme Court of India on Monday announced the verdict on same-sex marriage in India, saying it cannot make law but only interpret it and it is for Parliament to change the Special Marriage Act. 

While pronouncing his verdict today, CJI DY Chandrachud said that a transgender man can marry a woman or vice-versa, however, the directions do not result in the creation of an institution.

He also said it's for Parliament and state legislatures to legally recognize queer marriages. “We record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions."

“Contrary to Justice Bhat's judgment, directions in my judgment do not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution," he said.

“If a transgender person wishes to marry a heterosexual person such marriage will be recognized as one would be a man and another would be a woman, transgender man has the right to marry a woman, transgender woman has the right to marry a man and transgender woman and transgender man can also marry and if not allowed it will violate the transgender act," the apex court announced.

“Doctrine of separation of power can't stop courts from enforcing fundamental rights. This court can't make laws but can enforce laws," the CJI said, adding that Homosexuality isn't an urban elitist concept.

“Gender queerness isn't about status or affluence. Marriage can't remain a static, stagnant, or unchanging institution," the Chief Justice of India stated.

He added, “I have dealt with the issue of judicial review and separation of powers, it means each organ functions a different function. The traditional doctrine does not animate the functioning of most modern democracies. a nuanced functioning of this doctrine works and an institutional comity guides the working of another arm."

“Centre stated there would be violation of separation of powers, but courts power for judicial review is also a part of basic structure and see that no organ acts in excess of constitutional mandate," he said.

The CJI further asserted that the top court can't compel Parliament or state assemblies to create a new institution of marriage.

The Chief Justice of India said, "Can't redraft SMA or other legal provisions to substitute "man" and "woman" or "husband" and "wife".. There can't be judicial legislation."

“Right to enter into a union must lead to a recognition by the State for the fulfillment of such a right," DY Chandrachud said.

“Right to intimate association has been linked to several articles in the constitution. One is article 19(1)(e).. where one can settle down anywhere and then build their life there also includes the right to choose a life partner... right to life under article 21 ensures dignity and privacy. right to intimacy emanates from all of this.. choosing a life partner is an integral part of life and what defines their own identity. the ability to choose a partner goes to the root of the right to life and liberty under article 21," the judgment read.

CJI Chandrachud noted it’s incorrect to say marriage is a static and unchanging institution. If the Special Marriage Act is struck down, it will take the country to the pre-Independence era, he adds.

Whether a change in the regime of the Special Marriage Act is required is for the Parliament to decide. This Court must be careful to not enter into the legislative domain, he stated.

The top court said unmarried couples, including queer couples, can jointly adopt a child. 

He clarified his judgment has not granted any social or legal status or legal recognition to same-sex marriages but has ensured certain legitimate benefits flow to queer couples.

“In view of the deeming fiction created by Hindu adoption and maintenance act.. thus all benefits available to a legitimate child of a married couple will flow to the child of an unmarried couple.. further breakdown in relation of an unmarried couple will not alter the status of the child," he said.

The CJI also directed police officials not to harass queer couples, and force them to return to their parents. “Before lodging an FIR against a queer couple in connection to their relationship, there must be a preliminary inquiry."

The petitioners have argued that same-sex couples should be granted the same rights as any heterosexual couples the status of spouse in finance and insurance issues; medical, inheritance, and succession decisions.

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Published: 17 Oct 2023, 11:59 AM IST
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