This article advocates that there exist various safeguards under the existing legal framework for queer couples to enter into a private contract of civil union and legally protect their rights despite the refusal of the Supreme court in Supriyo v. Union of India1 (hereinafter referred to as “Supriyo matter”) to declare marriage as a fundamental right and extend the benefits thereof to queer couples. This is argued in light of the fact that the Supreme Court categorically held that the right to cohabit and form a union is a fundamental right and the State is duty-bound to protect such rights. However, the Supreme Court opined that queer couples cannot seek creation of a new social institution or modification within an existing social institution through judicial diktat since it would amount to judicial overreach. Accordingly, this article seeks to balance the issues faced by the queer couples and the findings of the Supreme Court. Therefore, this article advocates that queer couples in India have a right to form civil unions and protect their relationship under the existing legal framework vis-à-vis the Contract Act, 18722 and the Penal Code, 18603 (Nyaya Sanhita, 20234) even though same-sex marriage is not recognised under the law. In this regard, this article analyses the current laws to ensure that the relationships of queer couples are legally protected without having to coerce the legislature or the judiciary to create a new social institution or modify an existing social institution.
Therefore, this article analyses the issues highlighted by the Supreme Court and accordingly seeks to provide solution for the queer couples to legally protect their relationships. In this regard, the Supreme Court noted that extending the benefits of marriage for queer couples would amount to judicial overreach and would require the Judges to enter into legislative domain and declare laws on various aspects such as grounds for divorce, prohibited relationships, etc. thereby violating the doctrine of separation of powers.
69. … There are almost intractable difficulties in creating, through judicial diktat, a civil right to marry or a civil union, no less, of the kind that is sought by the petitioners in these proceedings. “Ordering a social institution” or rearranging existing social structures, by creating an entirely new kind of parallel framework for non-heterosexual couples, would require conception of an entirely different code, and a new universe of rights and obligation.5
Therefore, in order to balance the issues faced by the queer couples and the issues highlighted by the Supreme Court, this article analyses the existing legal framework which allows for the protection of the rights of queer couples without necessitating the creation of a novel legislation either by the judiciary or the legislature. Such an argument is advanced in light of careful examination of the nuance that even though the Supreme Court refused to declare marriage as a fundamental right, the Supreme Court categorically declared right to relationship to be a fundamental right.
52. While we agree, that there is a right — which we will characterise as a “right to relationship” to avoid confusion — we squarely recognise it to fall within Article 216, as already recognised in the aforecited cases. The right to relationship here, includes the right to choose a partner, cohabit and enjoy physical intimacy with them, to live the way they wish to, and other rights that flow from the right to privacy, autonomy and dignity. They are, like all citizens, entitled to live freely, and express this choice, undisturbed in society. Whenever their right to enjoyment of such relationship is under threat of violence, the State is bound to extend necessary protection.7
In view of the same, this article advocates that the queer couples can exercise this right and create a novel institution similar to marriage under the existing laws without any intervention of either the judiciary or the legislature. Moreover, they can seek legal protection of such relationships by entering into a contract of civil union. In this regard, it is pertinent to note that there is a difference between the State recognising a right and the existence of the right. In other words, merely because a right is not recognised by the State and codified under a statute, it does not follow that the right does not exist. For example, the right to live-in relationship is not recognised under any codified law, nevertheless, the right exists and the courts have extended legal protection onto such relationships under the existing legal framework. In fact, any form of relationship can be entered into by individuals provided that such relationships are not prohibited under the law. Moreover, individuals entering into such relationships can also enter into a contract of civil union and seek legal protection under the existing legal framework. Accordingly, it is argued that queer couples can enter into a contract for civil union and seek legal protection for their relationships under the existing legal framework.
As noted by the Supreme Court in Supriyo matter8, marriage as an institution was not created by the State, rather, the institution of marriage was created by a certain class of citizens (heterosexual individuals) in order to protect their interests. It was much later that the State legally recognised the institution of marriage in order to promote its own legitimate State interest.
45. … Therefore, marriage as an institution is prior to the State i.e. it precedes it. The status is still, not one that is conferred by the State (unlike the licence regime in the US). This implies that the marriage structure exists, regardless of the State, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the State. Its source is external to the State. That source defines the boundaries of marriage.
In fact, the institution of marriage relies on the principles of contract. It is to be noted that even if a marriage is treated as a sacrament rather than a contract, it principally relies on the concepts of a promise or a sacred oath, which derive their jurisprudence from the principles of contract. Similarly, this article vehemently advocates that queer couples can also create an institution, namely, “civil unions” in order to protect their interests. Moreover, it is also argued that queer couples can also seek legal protection for such relationships by entering into contract of the civil union.
In this regard, it is pertinent to refer to Section 109 of the Contract Act, 1872 which states that,
10. What agreements are contracts. — All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void.
Furthermore, Section 1110 of the Act states that,
11. Who are competent to court. — Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind, and is not disqualified from contracting by any law to which he is subject.
Therefore, as per the principles of the law of contract, as long as a certain act has not been declared to be illegal by the State, the citizens can enter into a contract for doing such acts. Accordingly, there is no restriction on the citizens to enter into a contract for civil union and seek legal protection for their relationships. In fact, the Supreme Court in Supriyo matter11 categorically declared that queer couples have a fundamental right to enter into a relationship. Hence, it can be fairly concluded that queer couples can enter into a contract of civil union and exercise their fundamental right to enter into a relationship under the Contract Act since the act of entering into a relationship between two consenting queer adults is a lawful object under the law. As such, queer couples can enjoy some of the benefits available to heterosexual couples under the institution of marriage.
The benefits that marriage provides to a couple are emotional stability in relationship by making it difficult to separate through the divorce laws, financial stability by demarcating the issues of maintenance and inheritance in case of separation or demise of a partner, physical stability by protecting from domestic violence, dowry, etc. Similarly, the contract for civil union may list out the grounds of divorce, issue of maintenance and inheritance in case of separation, the rights/nominee of the adopted children, so on and so forth. And the State and the courts are duty-bound to ensure enforcement of such contracts for civil union under the contract law. It is also pertinent to note herein that if the contract of civil union would contain provisions related to transfer of rights in property, such contracts can be registered as well. Furthermore, the provisions of Penal Code, 1860 (Nyaya Sanhita, 2023) w.r.t. violence, cheating, etc. may also be incorporated in order to create an additional layer of security for the individuals entering into such relationships. The provisions of Penal Code can provide legal protection from potential threat of violence and mental abuse against individuals in non-binary relationships. In this way queer couples can ensure that their rights are legally protected without having to coerce the State or the court to extend legal protection to such relationships through a statute or through a declaration of the court.
This article aims to strike a balance between the issues faced by the queer couples and the issues raised by the Supreme Court. In doing so this article proposes a harmonious way in which neither the State nor the judiciary is coerced into creating a new institution, nevertheless, the queer couples can enter into a civil contract to protect their relationship. While the creation of such an institution through private contract would not solve all the problems faced by queer couples and undoubtedly there is an immediate need for the State to intervene and establish clear grounds for such matters, however in the interim, this article proposes a solution for queer couples to take a step towards ensuring legal protection within the framework of the existing laws.
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*Advocate, practising at the Supreme Court of India.
**Advocate, practising at Karnataka High Court.
5. Supriyo case, 2023 SCC OnLine SC 1348.
6. Constitution of India, Art. 21.
7. Supriyo case, 2023 SCC OnLine SC 1348.
