The Supreme Court of India, through a five-judge Constitution Bench, on 17 October 2023 delivered a 3:2 split verdict declining to recognise the right of same-sex couples to marry under the Special Marriage Act, 1954 or any existing legislation. Chief Justice D.Y. Chandrachud, writing for himself and Justice Sanjay Kishan Kaul (the minority), supported judicial recognition of civil unions for same-sex couples. The majority comprising Justice S. Ravindra Bhat, Justice Hima Kohli, and Justice P.S. Narasimha held that the question of marriage equality fell within the legislative domain and could not be judicially created.
Background
The proceedings consolidated 20 connected petitions brought by 52 petitioners seeking judicial recognition of the right to marry for same-sex couples. The petitioners relied on the Supreme Court's 2018 decision in Navtej Singh Johar v. Union of India, which decriminalised consensual homosexual relations by reading down Section 377 of the Indian Penal Code, arguing that the logical corollary of decriminalisation was the recognition of the right to form legally sanctioned partnerships.
The Special Marriage Act, 1954 was central to the challenge because it provides for civil marriages independent of personal religious laws. The petitioners contended that the Act's gendered language ("husband" and "wife") should be read in a gender-neutral manner to include same-sex couples, consistent with the constitutional values of equality and dignity.
The Union of India opposed the petitions, arguing that marriage is a social institution regulated by personal law and legislative policy, that the Court cannot rewrite statutory provisions, and that the concept of marriage as between a man and a woman reflects the legislative intent of the SMA.
Key Holdings
The Constitution Bench addressed multiple dimensions of the marriage equality question:
No fundamental right to marry: All five judges unanimously held that there is no unqualified fundamental right to marry under the Constitution. The right to marry is a statutory right governed by legislation, not a fundamental right that exists independent of statutory recognition.
Court cannot read in same-sex marriage (3:2 majority): The majority held that the Court cannot read the Special Marriage Act in a gender-neutral manner to include same-sex couples. Such a reading would amount to judicial legislation, fundamentally altering the statutory scheme that Parliament enacted.
Queerness is not urban or elite (unanimous): All five judges affirmed that queerness is not an urban or elite phenomenon. The Court recognised the dignity and worth of LGBTQ individuals and relationships across all sections of Indian society.
Transgender persons in heterosexual relationships (unanimous): The Court unanimously held that transgender persons in heterosexual relationships — a transgender man married to a woman, or a transgender woman married to a man — have the right to marry under existing law.
Civil unions — legislative prerogative (3:2): The minority (CJI Chandrachud and Justice Kaul) held that the Court should direct the State to recognise civil unions for same-sex couples and extend consequential rights including joint bank accounts, pension nominations, and medical decision-making. The majority held that even civil unions are within the legislative domain.
Committee directed: The Court directed the Central Government to constitute a committee headed by the Cabinet Secretary to examine and grant entitlements to queer couples in terms of ration cards, joint bank accounts, and other administrative benefits that do not require legislative amendment.
Implications for Practitioners
The verdict leaves the legal status of same-sex relationships in a state of partial recognition. While decriminalisation remains intact post-Navtej Singh Johar, same-sex couples continue to lack legal recognition of their partnerships, with implications for succession, maintenance, adoption, medical rights, and property ownership.
Family law practitioners should note that the unanimous holding on transgender marriage provides immediate legal clarity. Transgender persons in heterosexual relationships are entitled to marry under the SMA and personal laws, and any refusal to solemnise or register such marriages can be challenged.
The directed committee for administrative entitlements offers a non-legislative pathway to some practical benefits. Practitioners advising same-sex couples should monitor the committee's formation and recommendations, which may provide relief on specific entitlements without requiring parliamentary action.
For constitutional law practitioners, the majority's emphasis on the legislative domain for marriage regulation signals judicial restraint on questions involving the transformation of social institutions. This may influence the framing of future rights-based petitions, directing advocates to engage both legislative and judicial forums rather than relying solely on constitutional adjudication.