Same sex marriage

A Constitution Bench of the Supreme Court on Tuesday(October 17) delivered it’s verdict on same sex marriage.

On Matters of legalizing same sex marriage

Unanimously held that only the legislature can recognise or regulate same-sex marriage.

On matters ofCivil Union of non-heterosexual couples

The bench ruled against it in a verdict majority: 3:2

On Matters of Child Adoption

The Constitution Bench was divided in its opinions on whether unmarried couples, including same-sex partners, can jointly adopt children.

It declined the adoption on majority.

On matters of transgender persons in heterosexual relationships

The Supreme Court on Tuesday held that transgender persons in heterosexual relationships have the right to marry under existing law.

Verdict of Supreme Court:

Right to Marriage is not a fundamental right.

All five judges on the Bench unanimously accepted that it was time to end discrimination against same-sex couples

Judges who favored the civil unions for non-heterosexual couples

Chief Justice of India D.Y. Chandrachud

Justice Sanjay Kishan Kaul

Judges opposed the civil unions for non-heterosexual couples

Justices S.R. Bhat,Hima Kohli & P.S. Narasimha

Chief Justice of India D.Y. Chandrachud said

“queer people had a fundamental right to form relationships and the State was obligated to recognise and grant legal status to such unions, so that same-sex couples could avail themselves of the material benefits provided by law”

“right to form a union was a feature of the fundamental right to choose partners and lead a dignified, meaningful life.

Equality cannot be denied to same-sex couples on the basis of their sexual orientation, he said, emphasising that queer persons have a right to form abiding relationships.

queerness was a natural phenomenon, neither urban nor elite, adding that the conception of marriage was neither universal nor static

Justice Kaulsaid, “Legal recognition aids social acceptance, which in turn increases queer participation in public spaces.”

Majority judgment, held that

“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”.

“the court’s judgment in decriminalising homosexuality in 2018 (Navtej Singh Johar & Ors. v. Union of India case of Decriminalizing section 377) did not extend to legal recognition of queer unions”

“Previous judgments of this court have established that queer and LGBTQ+ couples too have the right to union or relationship — be it mental, emotional or sexual — flowing from the right to privacy, right to choice, and autonomy.

This, however, does not extend to a right to claim entitlement to any legal status for the union or relationship