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PremiumSame-Sex Marriage Verdict: The Supreme Court pronounced its verdict on the legal recognition of same-sex marriage today ie. on 17 October. The apex court had reserved its judgment on 11 May on a batch of pleas seeking legal validation for same-sex marriage. The five-judge Constitution bench that was hearing the pleas comprised Chief Justice DY Chandrachud and Justices SK Kaul, SR Bhat, Hima Kohli and PS Narasimha. During the course of hearings, the petitioners said that “India is a marriage-based culture" and that LGBT (lesbian, gay, bisexual, and transgender) couples should be granted the same rights as any heterosexual couples have, like the status of “spouse" in finance and insurance issues; medial, inheritance, and succession decisions, and even in adoption and surrogacy matters.
The couple, both men who have been together for 15 years, sat in Bengaluru watching with bated breath as the Supreme Court in far away Delhi read out the judgment on same-sex marriages that would decide their future as a family unit with their two children.
But the legitimacy Rishi* and Aryan* (names changed) were looking for was not to be. A five-judge Constitution bench of the apex court refused to grant legal recognition to same-sex marriages. The bench also differed on applicability of adoption rules for queer couples while denying adoption rights to LGBTQIA couples.
“The court's refusal to recognise our partnership has left an indelible scar, affecting our daily existence. It's incredibly painful," Aryan* told PTI over the phone.
Both Rishi* and Aryan* adopted a son each as a single parent, one in 2016 and the other in 2022.
"Our children know that we love each other deeply, but they're constantly reminded that our love isn't considered 'real' by the law. The emotional burden is unbearable and we see its effects on our kids every day," Aryan* said.
Rishi* echoed his anguish.
Filmmaker Onir has expressed his disappointment at the verdict pronounced on Tuesday by the Supreme Court of India which refused to legalise same-sex marriages.
"DISAAPOINTED .... The cis gendered world FAILED to be better humans," Onir tweeted soon after the judgement by a five-judge Constitution bench headed by Chief Justice of India DY Chandrachud.
The filmmaker, who has explored same-sex relationships in 'My Brother Nikhil' and 'Pine Cone' also posted on the X app "What a shame."
Solicitor General Tushar Mehta on Tuesday welcomed the Supreme Court judgement refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and leaving the issue for Parliament to decide.
The solicitor general, the key lawyer for the Centre who urged the top court to let Parliament take a call on the matter since it fell within the ambit of the legislature, said, “I wholeheartedly welcome the judgment. I am happy that my stand has been accepted."
“All four judgements have taken the jurisprudence of our nation and the intellectual exercise which went into writing the judgments to a next level. There are very few courts in the world where one can expect this level of intellectual and scholarly judicial exercise. This judgement would be read across jurisdictions," he said in a statement.
The Rashtriya Swayamsevak Sangh (RSS) on Tuesday welcomed the Supreme Court's decision on same-sex marriage, saying Parliament can hold a discussion on its various aspects and take "appropriate" decisions.
A five-judge Constitution bench of the Supreme Court refused to grant legal recognition to same-sex marriages earlier in the day.
Chief Justice of India D Y Chandrachud, who was heading the bench pronouncing its verdict on 21 pleas seeking legal validation for same-sex marriages, said the court can't make law but only interpret it and it is for Parliament to change the Special Marriage Act.
In a post on X, Congress general secretary Jairam Ramesh said, "On the same sex marriage and related issues we are studying the different and differing judgments delivered in the Supreme Court today and will have a detailed response subsequently."
The Vishva Hindu Parishad on Tuesday welcomed the Supreme Court's refusal to grant legal recognition to same-sex marriages and said the court’s decision to not give "homosexuals" the right to adopt a child is also a "good step".
The Vishva Hindu Parishad’s (VHP) reaction came after a five-judge Constitution bench of the Supreme Court refused to grant legal recognition to same-sex marriages earlier in the day.
Chief Justice of India D Y Chandrachud, who was heading the bench, while pronouncing its verdict on 21 pleas seeking legal validation for same-sex marriages, said the court cannot make law but only interpret it and it is for Parliament to change the Special Marriage Act.
LGBTQ activist Prijith PK had speaking to ANI before the verdict said they they were anticipating a good day because after 2014 and 2018 the Supreme Court was delivering a judgement on LGBTIQ issues.
Arvind Narrain, PUCL state president on the Supreme Court's observations on same-sex marriage said, “In general, we welcome the judgment of the Supreme Court. Of course, it's a lengthy judgment and let's see how we take this battle forward. The point on which all the judges were united was the idea that we can't recognise the rights under the Special Marriage Act. We don't see this as a negative, it puts the ball back in our court."
As the five-judge Constitution Bench of the Supreme Court, led by Chief Justice of India (CJI), Justice DY Chandrachud, held a crucial hearing on a batch of pleas seeking recognition of same-sex marriage, Muslim cleric Maulana Sajid Rashidi said urged the apex court not to recognise such marriages and rule them as a "crime" instead.
Speaking to ANI on Tuesday, Maulana Rashidi, said same-sex marriage was consistent with India's culture and was, in fact, a practice borrowed from the West.
"The practice does not represent the Indian culture and is, in fact, an idea borrowed from the West. The Europeans and the West are open about these things but such practices should never be encouraged or allowed in India. All marital practices in the country are rooted in our time-honoured values and societal traditions. The Supreme Court should carefully consider our core values and beliefs before passing its final verdict in the matter," Rashidi told ANI.
While speaking to ANI, one of the petitioners and activist Anjali Gopalan said, " We have been fighting for long and will keep doing so. Regarding adoption also nothing was done, what the CJI said was very good regarding adoption but it's disappointing that other justices didn't agree...this is democracy but we are denying basic rights to our own citizens"
Supreme Court refused to give marriage equality rights to the LGBTQIA+ community in India. One of the petitioners and LGBTQIA+ rights activist Harish Iyer spoke to news agecny ANI and said, “Though at the end, the verdict was not in our favour but so many observations(by Supreme Court) made were in our favour."
Senior advocate Geeta Luthra who appeared for some of the petitioners in the marriage equality case says, "Even if the right to marriage has not been given, CJI has said that the same bundle of rights which every married couple has should be available to same-sex couples."
Supreme Court Bar Association president Adish Aggarwala said, “I welcome the decision of the Supreme Court where they have not allowed same-sex marriage."
The Supreme Court pronounced its verdict on the legal recognition of same-sex marriage today ie. on 17 October. The top cout has refuses to give marriage equality rights to LGBTQIA+ community in India
No legal recognition to same-sex marriages
No constitutional or fundamental right to civil unions
Centre's high-powered committee to examine concerns of same sex couples
No right for queer couples to jointly adopt
Justice S Ravindra Bhat expresses disagreement over issuing directions to the government on the Special Marriage Act (SMA). “Courts can't create a social or legal institution for non-heterosexual couples. There's no unqualified right to marry and a consequent recognition by the State," observes Justice Bhat.
Queer persons have right to choose partners, State cannot be obligated to recognise rights flowing from such union: Justice Bhat
The court can't make law but only interpret it and it is for Parliament to change the Special Marriage Act, Chief Justice of India (CJI) D Y Chandrachud said on Tuesday while pronouncing his verdict on 21 pleas seeking legal validation for same-sex marriages.
At the outset, Justice Chandrachud said there are four judgments -- by himself, Justices Sanjay Kishan Kaul, S Ravindra Bhat and P S Narasimha -- in the matter. Justice Hima Kohli is also a part of the five-judge bench.
Directing the Centre, states and Union Territories (UTs) to ensure that the queer community is not discriminated against, the CJI, who is heading the constitution bench, said queer is a natural phenomenon known for ages and is neither urban nor elitist.
Justice Ravindra Bhat while reading his Judgment said, “ right to cohabiting cannot lead to setting up of an institution... ordering a social institution or re-arranging existing social structures would require construction of new code and also require marriage laws concerning alimony etc.. we cannot agree with CJI tracing union to freedom of speech and expression and the positive obligations. queer people has the right to privacy, dignity and to choose a partner. W e disagree with the CJI in this regard which forms the basis of the final conclusions," as quoted by Bar and Bench
-Justice Ravindra Bhat: this is not a case where the court can depart from such rule and what is being asked is state intervention in enabling marriage. civil marriage and such relationship cannot exist in absence of a statute. there is a paradox which runs deep in court mind and intervention of state has to be through state action and be compelled by the agency of this court.
-Thus there cannot be an unqualified right to marry which is to be treated as a fundamental right. We agree with the CJI on this. while we agree that there is a right to relationship.. we characterize it as right to relationship as it falls under article 21 and includes right to choose a partner and enjoy physical intimacy with them including right to privacy, autonomy etc and should enjoy this right undisturbed the society and when threatened state has to protect the same, Justice Ravindra Bhat said as quoted by Bar and Bench.
Justice S Ravindra Bhat says he agrees and differs with views of CJI Chandrachud on certain points
Justice SK Kaul said that “Legal recognition of same sex unions is a step towards marriage equality..however marriage is not the end. Let us preserve the autonomy so long as it does no impinge on others rights."
Non-heterosexual and heterosexual unions must be seen as both sides of same coin: Justice SK Kaul
"Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions. This Committee to consider to include queer couples as 'family' in ration cards, enabling queer couples to nominate for joint bank accounts, rights flowing from pension, gratuity etc. The Committee report to be looked at Union Government level," says CJI Chandrachud
CJI DY Chandrachud said, State, Union, UTs shall not bar queer people to get into union to avail benefits of the state
SG Tushar Mehta assures committee shall be set up with domain experts.. the committee to hold wide stakeholder consultations with the queer community: the community to see if such families can have ration cards, can have insurance facilities and the medical practitioners have the obligation to consult family for terminal illness... rights from employment, gratuity etc to be looked into. The committee report to be looked at the union govt level.
* It's for Parliament & state legislatures to legally recognise queer marriages
* Can't nix/read down SMA
* Queer couples have a right to enter into union
* State's duty to ensure such unions & couples get protection & bouquet of rights
* Queer & unmarried couples can jointly adopt
* Centre should proceed with its committee, headed by the Cabinet Secretary, to address the raft of concerns of same-sex couples, including ration cards, pension, gratuit and succession
Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship, says CJI DY Chandrachud on marriage equality case.
Conclusions:
1) Queerness is a natural phenomenon; not urban or elitist
2) It's for Parliament & state legislatures to legally recognise queer marriages
CJI directs Centre and State governments to ensure that there is no discrimination in access to goods and services to the queer community and government to sensitise public about queer rights. Government to create hotline for queer community, create safe houses 'Garima Grih' for queer couples who face violence and ensure inter-sex children are not forced to undergo operations.
Petitioners submit the violence and discrimination faced by queer community.
directions:
1. Union, states, UT re directed to ensure queer community is not discriminated against, no discrimination in supply of goods and services, sensitise the public, to prevent harassment of any kind, to establish safe house in all areas, to ensure that sex change operations are not allowed when they are not of age to comprehend the effect of such procedures, no person shall undergo hormonal therapy as a precondition to be able to be recognised as a queer person
Directions to police
1. police shall ensure that no queer person are harassed to ascertain gender identity, no force by police to go back to their natal families, when a police complaint is filed by a queer couple after verification due protection to be granted.
CJI says material benefits/ services given to heterosexual couples & denied to queer couples will be a violation of their fundamental rights
CJI DY Chandrachud: Married couples can be differentiated from unmarried couples. respondents have not placed on record any data to show that only married couples can grant stability... this is noted that separation from married couple is restrictive as it is regulated by law but for unmarried couple that is not so. the stability of the household depends on several factors, creating healthy work life balance and there is no single definition of a stable household and the pluralistic form of our constitution gives right to different form of associations. CARA regulation 5(3) discriminates between partners in atypical unions. It will disproportionately effects non heterosexual couples and thus a unmarried heterosexual couple can adopt but not the same for the queer community. the law cannot make an assumption about good and bad parenting and it perpetuates a stereotype that only heterosexual can be good parents. Thus the regulation is held to be VIOLATIVE of the queer community. Thus unmarried heterosexual couple can marry to meet the requirement but the queer person does not have the right to do so and this exclusion only reinforces the discrimination and thus CARA circular is violation of Article 15.
CJI: Transgenders CAN marry. A transgender man can marry a woman & vice-versa. if a transgender person wishes to marry a heterosexual person such marriage will be recognized as one would be man and another would be 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 transgender act.
CJI Chandrachud says 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 legislative domain, says CJI.
CJI DY Chandrachud: 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 building their life their also includes 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 partner goes to the root of right to life and liberty under article 21
Whether there is need for change in regime of Special Marriage Act is for Parliament to decide, says CJI Chandrachud said on same-sex marriage
Can't hold Special Marriage Act unconstitutional just because it doesn't recognize same-sex marriages. Also, compel Parliament or state assemblies to create a new institution of marriage: CJI DY Chandrachud
CJI said, “humans live in complex societies... our ability to feel love and connection with one another makes us feel human. we have an innate need to be seen and see. the need to share our emotions make us who we are. these relationships may take many forms, natal families, romantic relationships etc.. the need to form part of family is core part of the human trait and is important for self development"
CJI said, Right to enter into an union must lead to a recognition by the State for fulfillment of such a right
As per CJI, "Can't redraft SMA or other legal provisions to substitute "man" and "woman" or "husband" & "wife".. There can't be judicial legislation."
As per CJI, Can't compel Parliament or state assemblies to create a new institution of marriage
Marriage can't remain a static, stagnant or unchanging institution, says CJI
CJI Chandrachud says homosexuality or queerness is not an urban concept or restricted to the upper classes of society. Queerness can be regardless of one's caste or class or socio-economic status.
CJI DY Chandrachud says there are four judgements. CJI says there is a degree of agreement and there is degree of disagreement in the judgements.
"The doctrine of separation of powers means that each of the three organs of the State perform distinct functions. No branch can function any others' function. The Union of India suggested that this court would violate the doctrine of separation of powers if it determines the list. However, the doctrine of separation of powers does not bar the power of judicial review. The Constitution demands that this court protect the fundamental rights of citizens. The doctrine of separation of powers does not come in the way of this court issuing directions for the protection of fundamental rights," CJI Chandrachud adds.
CJI started reading judgment. He said, “There is a degree of agreement and degree of disagreement."
Ahead of the Supreme Court's expected verdict on pleas seeking legal validation for same-sex marriage, Arundhati Katju said have been waiting for judgment for so many years, we'll give a statement once the verdict comes.
I feel it will not be good if the Supreme Courts grants permission for same-sex marriage, Supreme Court Bar Association President Adish C Aggarwala said while speaking to news agency PTI.
While speaking to news agency ANI, Amrita, partner of a petitioner in the same-sex marriage case said, “I would like to see a positive judgement besides inclusion in the Special Marriage Act and adoption rights and the right to form chosen families. With this judgement a number of things will become easier."
