Excerpt from the judgment of Justice Ravindra Bhat
At the centre of the dispute, lies the definition and the content of two willing individuals’ right to marry.
On the one hand the petitioners assert that marriage is an evolving social institution, capable of embracing the union of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably) individuals and necessitating state recognition; on the other, the respondents assert that the institution of marriage rests on certain constant and unchanging premises, the most prominent of which is that it is a heterosexual union. The task of this Court lies in determining how the Constitution speaks on the issue.
Having had the benefit of reading the draft and revised opinions circulated by the learned Chief Justice, Dr. Chandrachud, we find it necessary to pen our reasoning and conclusions in this separate judgment. The learned Chief Justice has recorded in detail the submissions made by counsel, and claims made; they consequently do not require reiteration.
Similarly, the sections addressing the Union Government’s preliminary objections – i.e., the discussion on the court’s authority to hear the case, and that queerness is a natural phenomenon that is neither urban or elite, are parts we have no hesitation in agreeing with.
However, we do not agree with the conclusions arrived at by the learned Chief Justice and the directions issued.
We do agree with certain premises and conclusions that he has recorded – they are:
(a) that there exists no fundamental right to marry under the Constitution;
(b) that the Special Marriage Act, 1956 (hereafter “SMA”), is neither unconstitutional nor can it be interpreted in such a manner so as to enable marriage between queer persons; and that
(c) transgender persons in heterosexual relationships, have the right to solemnize marriage under existing legal frameworks.
We have briefly highlighted our main points of agreement, and reasoned in more detail those aspects with which, respectfully, we cannot persuade ourselves to concur.
We had the benefit of perusing the concurring opinion of Narasimha, J. We endorse those observations and conclusions fully; the reasoning and conclusions shall be read as supplementing that of the present judgment.
The common ground on which the batch of petitions claim relief is that LGBTQ+ persons are entitled to solemnize and register their marriage – in other words, they claim a right to legal recognition of their unions within the marriage fold.
The petitioners rely on fundamental rights to equality and non-discrimination, of dignity and autonomy and of expression and association, and specifically, most petitioners focus on Section 4(c) of the SMA as well as the first and second schedules thereof, to state that particular references to “husband” or “wife” in its provisions are to be read “down”, and a neutral expression needs to substituted, instead.
A few petitioners also claims that Section 4(c) and 17 of the Foreign Marriage Act, 1969 need to be similarly read down. Some of the prayers also relate to the right of such couples to adopt under existing laws in India.
Some of the prayers specifically challenged Chapter II of the SMA– relating to notice and objections procedure prescribed. However, during the course of hearing, the court indicated that this was not a question of law that necessitated a 5 judge-bench ruling, and hence this issue was to be left for consideration by a numerically smaller bench.
Supriya @Supriyo Chakraborty v. Union of India (2023)