The 5 judge Bench of Supreme Court, with 3:2 majority, has pronounced its verdict today and held that only Parliament and the State Legislatures have the authority to create an institution like same-sex marriage and grant them recognition. The constitutional bench comprised of the following judges: Chief Justice of India DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narsimha.

The five-judge bench of the Supreme Court had reserved its verdict on May 11, after a hearing marathon of ten days, in pursuance of batch of around 20 petitions that were filed asking the judiciary to step in over the failure of the executive to grant equality to same-sex couples in matters pertaining to marriage, adoption, succession, inheritance, divorce.

Arguments Advanced

The petitioners had challenged the constitutionality of various provisions under the Special Marriage Act, Hindu Marriage Act and other laws related to marriage on the ground of being discriminatory as they deny the same-sex couples the right to marry. Alternatively, it was requested by the petitioners that the provisions of these Acts be read broadly in order to include same-sex couples within their purview. The petitioners relied on the judgment of Navtej Johar which had decriminalized sexuality.

Throughout the proceedings, the Union administration claimed that legislative policy and compelling state interest support only a heterogeneous institution of marriage between a biological man and a biological woman, while also accusing the petitioners of spreading a “urban elitist concept.” Legalizing same-sex marriages will wreak “complete havoc” on the country’s delicate balance of personal laws and accepted communal norms, the government warned the Supreme Court in a March document.

A marriage, according to the Centre, cannot be viewed as merely a concept within an individual’s domain of privacy when a formal recognition of such human relationships has many statutory and other consequences on couples, as well as their children, under various legislative enactments covering issues such as divorce, maintenance, succession, adoption, and inheritance.

During the arguments, it was stated that providing legal recognition to a union is solely up to Parliament, even if there are no restrictions on having gay relations or living together as a couple.

Judgment by the Court

The Judges unanimously held that legislature cannot be remitted positive directions by the Courts to grant legal recognition to same-sex marriages. The Judges also unanimously gave a go ahead for setting up of a high-powered committee by the Centre for the purpose of examining the issues related to same-sex couples.  Four different judgments have been authored by the judges, except Justice Hima Kohli, all of them have refused to include non-heterosexual couples within the fold of the Special Marriage Act. But it has been declared by the Judges that the same-sex couples have the right of cohabitation without any kind of threat of violence or interference.

The CJI and Justice Kaul decided in favor of right to form a civil union but Justice Bhat, Kohli and Narsimha ruled that marriage cannot be given a recognition as a fundamental right as under the Constitution, there is no unqualified right to marriage. Hence if there is no fundamental right to marry but only a statutory right, then there cannot be legally enforceable right to civil union. The same majority of the Judges held that the right to jointly adopt a child cannot be granted to the same-sex couples.

Written By: Advocate Vartika Chahal

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