Law Maker

Supriyo @ Supriya Chakraborty v. Union of India

Supreme Court of India · 17 October 2023 · 5 judges · 2023 INSC 920

The Court unanimously held there is no fundamental right to marry and declined to read the Special Marriage Act to include same-sex couples; by majority it declined to recognise civil unions or joint adoption by unmarried couples.

Facts

A batch of writ petitions and transferred cases was filed by members of the LGBTQIA+ community after Navtej Singh Johar decriminalised consensual same-sex relations. They sought declarations that LGBTQ persons have a right to marry a person of their choice; that the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969 are unconstitutional insofar as they do not provide for marriages of same-sex and gender non-conforming couples, or that gendered words in them be read in a gender-neutral way; and that the Adoption Regulations be declared unconstitutional insofar as they exclude LGBTQ couples from joint adoption. Other prayers related to the Citizenship Act, the Hindu Marriage Act, nomination of a 'chosen family', and protection from violence.

Questions before the Court

  1. Whether the Constitution guarantees a fundamental right to marry, including to same-sex couples.
  2. Whether the Special Marriage Act, 1954 is unconstitutional for excluding same-sex couples, or can be read in a gender-neutral manner.
  3. Whether queer couples have a constitutional right to a civil union or abiding relationship that the State must legally recognise.
  4. Whether Regulation 5(3) of the Adoption Regulations, barring joint adoption by unmarried couples, is invalid.

What the Court held

  • There is no unqualified fundamental right to marry under the Constitution; marriage is a right recognised by statute and, to the extent shown, by custom. That the Constitution contains no fundamental right to marry was the unanimous view of the Court.
  • The challenge to the Special Marriage Act on the ground of under-classification fails, and the Act cannot be read in a gender-neutral manner to permit same-sex marriage.
  • Legal recognition of a union akin to marriage or a civil union can come only through enacted law. The Court cannot direct the State to create such a framework, though queer couples have the right to choose a partner, cohabit and live free from threat and coercion.
  • Regulation 5(3) of the CARA Regulations cannot be held void on the grounds urged; the State should consider the position of de facto families.
  • Transgender persons in heterosexual relationships may marry under existing law.
  • Discriminatory effects of laws and schemes that tie benefits to marital status must be addressed by the State. The Union is to set up a high-powered committee chaired by the Cabinet Secretary to examine these issues after consulting stakeholders, States and Union Territories.

Why it matters

The Constitution Bench declined to recognise same-sex marriage judicially, holding that there is no fundamental right to marry and that any legal status for queer unions must come from the legislature. It left the Special Marriage Act and the adoption regulations intact, while affirming that queer couples' choice of partner and cohabitation is protected under Article 21 and requiring the State to examine discriminatory impacts through a committee. The minority would have recognised a right to union, and the Chief Justice would also have allowed joint adoption by unmarried couples.

In the Court's words

Copied from the official judgment; each passage links to its page.

“An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status.”
S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)Page 342 of the judgment
“However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship, through the medium of a law (or legal regime) and acknowledged the limitations on this court in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the State to create a framework for civil union or registered partnership, or marriage, or abiding co-habitational relationship.”
S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)Page 341 of the judgment
“I find that a right to a civil union or an abiding cohabitational relationship conferring a legally enforceable status cannot be situated within Part III of the Constitution of India. On this count too, I agree with the conclusions of Justice Bhat, and supplement them with my own reasons.”
Pamidighantam Sri Narasimha, J.Page 357 of the judgment
“That queer couples have the right to exercise their choice, cohabit and live without disturbance – is incontestable. In the same vein, that they are owed protection against any threat or coercion to their life, is a positive obligation that binds the State– this is a natural corollary of their right under Article 21.”
S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)Page 346 of the judgment

Provisions interpreted

Related judgments

Case and bench

Parties
Supriyo @ Supriya Chakraborty v. Union of India
Case
Writ Petition (Civil) No. 1011 of 2022
Decided
17 October 2023
Bench
Dr Dhananjaya Y Chandrachud, Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli, Pamidighantam Sri Narasimha
Opinions
Four opinions. S. Ravindra Bhat, J. wrote for himself and Hima Kohli, J., and Pamidighantam Sri Narasimha, J. agreed fully with Bhat, J.'s reasoning and conclusions, forming the majority. Dr Dhananjaya Y Chandrachud, CJI and Sanjay Kishan Kaul, J. (broadly agreeing with the CJI) were in the minority on the right to union (3:2); the CJI would also have allowed joint adoption by unmarried couples, a point Kaul, J. did not separately discuss.

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