New Delhi: In a much awaited verdict, the Supreme Court of India Tuesday October 17, 2023 said same sex and heterosexual couples are not same and hence cannot have same rights.
Refusing to accord legal recognition to same-sex marriages, the Supreme Court said there was “no unqualified right” to marriage with the exception of those that are recognised by law.
A five-judge constitution bench headed by Chief Justice D. Y. Chandrachud delivered four separate verdicts on a batch of 21 petitions seeking legal sanction for same-sex marriages.
However, all the five judges were unanimous in refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and observed it is within Parliament’s ambit to change the law for validating such union, according to PTI.
While the CJI wrote a separate 247-page verdict, Justice Sanjay Kishan Kaul penned a 17-page judgement in which he broadly agreed with Justice Chandrachud’s views.
Justice S Ravindra Bhat, who authored an 89-page judgement for himself and Justice Hima Kohli, disagreed with certain conclusions arrived at by the CJI including on applicability of adoption rules for queer couples.
Justice PS Narasimha said in his 13-page verdict that he was in complete agreement with the reasoning given and conclusions arrived at by Justice Bhat.
“There is no universal conception of the institution of marriage and that it lies within the domain of parliament and state legislatures to enact laws recognising and regulating queer marriage", CJI Chandrachud said in his concluding remarks. “Marriage, he said, had attained significance as a legal institution largely because it's regulated by the state and comes with a number of material benefits”, he added.
“There is no universal conception of the institution of marriage and that it lies within the domain of parliament and state legislatures to enact laws recognising and regulating queer marriage", CJI Chandrachud said in his concluding remarks.
“Marriage, he said, had attained significance as a legal institution largely because it's regulated by the state and comes with a number of material benefits”, he added.
Reasoning why same-sex marriage cannot be recognised, Justice SK Kaul said:
“Legal recognition of same sex unions is a step towards marriage equality”, he said but added, “However marriage is not the end. Let us preserve the autonomy so long as it does no impinge on others rights."
“Legal recognition of same sex unions is a step towards marriage equality”, he said but added,
“However marriage is not the end. Let us preserve the autonomy so long as it does no impinge on others rights."
The judges also rejected the notion that queer relationships and same sex marriages are urban phenomenon.
“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 Chandrachud said.
In the meantime the judges urged that the benefits and entitlements granted to heterosexual couples should also be extended to the same sex-couples and advised the government to form a committee on the matter.
"The 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," said CJI Chandrachud.
RSS has welcomed the SC verdict whereas the Congress said it will respond to the SC ruling after detailed study. The LGBTQ+ activist however said that the SC verdict is the end of the road and they will continue their fight.
The SC verdict today is in line with the government's stand on the issue which has earlier submitted that living together as partners and having sexual relationship by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit -- a husband, a wife, and children born out of the union -- while opposing pleas seeking recognition of same-sex marriage.
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