Earlier today, a five-judge Supreme Court bench convened to deliver its verdict on the landmark marriage equality case. While Chief Justice of India DY Chandrachud spoke in favour of same-sex unions, the bench stopped short of legalising same-sex marriage. However, the court “agreed to direct the Union of India to constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a “marriage”, according to Live Law.
On November 14, 2022, two same-sex couples, Supriyo Chakraborty and Abhay Dang and Parth Phiroze Merhotra and Uday Raj Anand filed writ petitions in the Supreme Court of India. The two couples sought the legalisation of same-sex marriages in India. The petitions focused on the Special Marriage Act, 1954 and its constitutionality. According to the petitioners, Section 4(c) of the Act recognises a union between a ‘male’ and a ‘female’. This discriminates against same-sex couples by denying them matrimonial rights such as adoption, employment, and retirement benefits. The petitioners also argued that the non-recognition of same-sex marriages infringes on their fundamental rights to equality, freedom of expression, and dignity.
A 5-judge Constitution Bench led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha had gathered for 10 days from April to May 2023 to hear the marriage equality case.
CJI DY Chandrachud said that the Supreme Court “cannot strike down the Special Marriage Act or read words into the SMA due to the institutional limitations. The Court cannot read words into allied laws like the Succession Act as it would amount to legislation.” However, this doesn’t mean that the LGBTQIA+ community can be treated with disrespect or indignity.
Here is what CJI DY Chandrachud had to say regarding the case:
“Right to enter into union cannot be restricted on the basis of sexual orientation.”
“Transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws.”
“Failure of State to recognize the bouquet of rights flowing from a queer relationship amounts to discrimination.”
“The Union Govt, State Govts and UTs shall not discriminate against the right of the queer community to enter into union.”
“Unmarried couples, including queer couples, can jointly adopt a child.”
“Law cannot assume only heterosexual couples can be good parents”
“Queerness can be regardless of one’s caste or class or socio-economic status.”
“It is not an English speaking man with a white collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”
“No person shall be forced to undergo any hormonal therapy.”
“There shall be no harassment to queer community by summoning them to police station solely to enquire about their sexual identity. Police should not force queer persons to return to their natal family.”
“Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.”
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