Site icon SCC Times

Live | Same-Sex Marriage: Supreme Court Marriage Equality Verdict

Bhumika Indulia

The Constitution bench comprising of Dhananjaya Y. Chandrachud, CJ, Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha J.J. is currently pronouncing its verdict in the matter seeking recognition for same-sex marriage.

The petitioners had sought recognition of same-sex marriages in the year 2022 under several acts, including the Special Marriage Act, 1954 (‘SMA 1954′), the Foreign Marriage Act, 1969 (‘FMA 1969′) and the Hindu Marriage Act, 1955 (‘HMA 1955′) and the same be made gender neutral.

 

SAME-SEX MARRIAGE VERDICT LIVE

I agree with Bhat, J’s reasoning on constitutionality of Regulation 5 of CARA – Narasimha, J.

Justice Narasimha states that right to marriage not a fundamental right

Justice Narasimha begins delivering his judgment. Shows agreement with Bhat, J’s verdict.

 

Conclusion and Directions by Justice Bhat:

  1. No unqualified right to marriage , except recognised by statute including the space left by custom
  2. An entitlement the right to union , or conferring legal status on queer relation can only be through enacted law. The Court cannot direct such regulatory framework
  3. Queer couples can celebrate their commitment with each other
  4. Previous Judgments have established that queer couple have right to union, this does not extend to right to claim legal status for the said union
  5. The union shall set up a high power committee chaired by cabinet secretary to undertake the comprehensive factors relating to queer committee
  6. State must ensure that queer community person are not subjected to any involuntary medical treatments

Key POINTERS on Justice Bhat’s judgment:

Justice Bhat bats for facilitating choice of queer couples on part of the State.

Bhat, J agrees with CJI Chandrachud on rights of trangenders to marry in heterosexual relations under the existing law, discusses challenges of recognition of same-sex marriage as against the existing social culture.

Justice Bhat elaborates context of ‘right to choose partner’

“What is being asked for is State’s intervention in enabling marriages for queer couples. Civil marriage or recognition of such relationship cannot exist in the absence of a statute.” ~ Justice S. Ravindra Bhat

Justice S. Ravindra Bhat on evolution of institution of marriage.

Justice S. Ravindra Bhat begins delivering his judgment.

Justice SK Kaul on recognition of Same-Sex Marriage

Justice Sanjay Kishan Kaul begins delivering his verdict and disagrees with Justice Bhat, shows agreement with CJI DY Chandrachud’s judgment.

Conclusion of judgment by Justice DY Chandrachud on Marriage Equality:

  1. This court is vested with the authority to hear this case under Article 32
  2. Queer is a natural phenomenon
  3. No universal concept of marriage, it’s not static
  4. The Constitution does not expressly recognise fundamental right to marry. However, several facets of marital relationship are there in the Constitution
  5. SMA cannot be held unconstitutional
  6. The freedom of all persons including queer is protected by part 3 of the Constitution
  7. In Art 15(1), the word sex must be read to include sexual orientation
  8. Inter-sex persons have the right to marry under existing law including personal laws
  9. State must enable LGBTQ to exercise their rights under Constitution
  10. Unmarried couples including queer couples can jointly adopt child
  11. REG 5 of CARA read down to include queer couple
  12. The Union and State Governments should not discriminate against the rights of Queer community to form Unions.

CJI Dr. DY Chandrachud’s directions to the Police:

 

CJI Dr. DY Chandrachud’s directions to the Government on obviate discrimination:

Unmarried heterosexual couple has the option of marrying and adopting the child as per the CARA Regulation but this option is not available to Queer couples. CARA is violative of Article 15. ~ CJI DY Chandrachud

CJI DY Chandrachud on Welfare of a child vis-à-vis institution of marriage

Same-sex couples and the dilemma regarding adoption of a child illuminated by CJI DY Chandrachud.

CJI Dr. Chandrachud explains the legal backing for right to recognition of same-sex marriages as per the Constitution of India.

 

“Many persons choose not to have life partners, this is by their choice. The meaning of liberty is the ability of choosing what one whishes to do and wishes to be. Each individual has the right to choose who he/ she wants to be with. Any form of discrimination has an impact on the queer couples” ~ CJI Chandrachud

“Whether a change should be brought to the legislative regime of the SMA if for the Parliament to determine.” ~ CJI Chandrachud

CJI Dr. DY Chandrachud explained that “If the Court hold Section 4 of special marriage act is unconstitutional and if the SMA is held void from excluding same sex marriage, it will take India back to the pre era.”

Dr. Justice DY Chandrachud dealt with the issue of judicial review and separation of powers. He added that “Power of Court to do judicial review is part of basic structure. The Constitution demands that Supreme court do judicial review.”

 

The 5-judge Constitution Bench delivers 4 judgments in Marriage Equality Case. DY Chandrachud, CJ, S.K. Kaul, Bhat and Narasimha, JJ write separate judgments with a degree of agreement and a degree of disagreement.

 

Exit mobile version