Excerpt from the judgment of Justice Ravindra Bhat in Same-Sex Marriage Case
While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all
This court in the previous sections of this judgment, has discussed and concluded how the claim for reading a fundamental right to marry, into the Constitution, cannot be granted. However, the court cannot be oblivious of the various intersections which the existing law and regulations impact to queer couples.
The constitution exists, and speaks for all, not the many or some. The felt indignities of persons belonging to the LGBTQIA+ community need no proof, of the forensic kind; it does have to meet a quantifiable threshold, this court has outlined them in Navtej Johar v. Union of India (2018). The refusal to acknowledge choice, by society, is because it is statedly based on long tradition (dating back to the times when the constitution did not exist). In such cases, the issue is does the state’s silence come in the way of this court recognizing whether the petitioners have been denied the right to choose their partner?
It is important to recognize, that while the state ipso facto may have no role in the choice of two free willed individuals to marry, its characterizing marriage for various collateral and intersectional purposes, as a permanent and binding legal relationship, recognized as such between heterosexual couples only (and no others) impacts queer couples adversely.
The intention of the state, in framing the regulations or laws, is to confer on benefits to families, or individuals, who are married. This has the result of adversely impacting to exclude queer couples.
By recognizing heterosexual couples’ unions and cohabitation as marriages in various laws and regulations such as: in employment (nominations in pension, provident fund, gratuity, life and personal accident insurance policies); for credit (particularly joint loans to both spouses, based on their total earning capacity); for purposes of receiving compensation in the event of fatal accidents, to name some such instances, and not providing for non-heterosexual couples such recognition, results in their exclusion.
The individual earned benefits (by each partner or both collectively), which would be available to family members (such as employee state insurance benefits, in the event of injury of the earning partner, provident fund, compensation, medical benefits, insurance benefits, in the event of death of such earning partner) are examples of what the injured or deceased partner by dint of her or his work, becomes entitled to, or the members of her family become entitled to.
The denial of these benefits and inability of the earning partner in a queer relationship, therefore has an adverse discriminatory impact. The state may not intend the discrimination, or exclusion in the conferment of such benefits or social welfare measures. Yet, the framework of such policies or regulations, expressed in favour of those in matrimonial relationships, results in denial of entitlements/benefits, despite the professional abilities and contributions which such individuals might to society.
The objective of many of these laws or schemes is to confer or provide entitlements based on individual earning and contribution. For example, provident fund is payable due to the employee’s personal contribution and their status as an employee, directly flowing from the functions discharged. Similarly, the objective of entitlement of benefits under the Employee State Insurance Act, and other such insurance related schemes or welfare measures (such as the Workman’s Compensation Act), flow from the individual status, work, and effort of the concerned employee.
Major part of these benefits, or all of them, flow in the event of certain eventualities such as fatal accident, or death. The design of these statutes and schemes, is to enable both the concerned subscriber or employee (in the event of infirmity or termination of employment) to receive them, or in an unforeseen event such as death, for his dependents to receive them. The restrictive way in which ‘dependent’ or ‘nominee(s)’ are defined (‘spouse’, or members of the family in a heteronormative manner) exclude their enjoyment to the intended beneficiary.
This deprivation has to be addressed. That these can be magnified, can be illustrated by a few examples. For instance, a queer couple might live together as spouses (without legal recognition)- even for two decades. If one of them passes away in a motor vehicle accident, the surviving partner would not only be unable to get any share of the deceased partner’s estate, but also any portion of the compensation.
In case the union was not with approval of their respective families, who might have ostracised or broken relationship with them, the result would be injustice, because the surviving spouse, who shared life and cared for the deceased partner, especially during hard times, would be completely excluded from enjoying any benefits – all of which would go to the family members of the deceased (who may have even boycotted them).
The same result would occur, in the event of death of one partner; family pension and death benefits would be denied to the queer partner. This injustice and inequity results in discrimination, unless remedial action is taken by the state and central governments.
It is relevant to record a note of caution at this juncture. While the right to marry or have a legally recognised marriage is only statutory, the right to cohabit and live in a relationship in the privacy of one’s home is fundamental, and enjoyed by all. This is not to say that the latter, is unqualified or without restriction.
Rather, that the latter, is a right afforded to all, irrespective of the State’s recognition of the relationship or status, as in the case of ‘married’ couples. The discriminatory impact recognised in the above paragraphs, however, is to highlight the effect of a legislative vacuum – specifically on long term queer couples, who do not have the avenue of marriage, to entitle them to earned benefits.
Could this same logic then be extended to heterosexual couples that choose to not get married, despite having the avenue? With respect, this would require further consideration by the State, and was an aspect that was neither argued, nor were we called upon to decide, in the present petitions.
Therefore, it is pointed out that State must remain cognizant of such an unwitting consequence of creating two parallel frameworks, for live-in or domestic partnerships, and marriages, and the confusion or anomalies this may cause to gendered legal frameworks (as they stand today) – while trying to remedy or mitigate the discrimination faced by queer couples.
Addressing all these aspects and concerns means considering a range of policy choices, involving multiplicity of legislative architecture governing the regulations, guided by diverse interests and concerns – many of them possibly coalescing.
On 03.05.2023, during the course of hearing, the learned Solicitor General, upon instructions, had expressed the Union’s position that a High-powered committee headed by the Union Cabinet Secretary would be formed to undertake a comprehensive examination to consider such impacts, and make necessary recommendations in that regard.
Transgender persons in heterosexual persons can marry under existing law
We are in agreement with the Part (xi) of the learned Chief Justice’s opinion which contains the discussion on the right of transgender persons to marry.
We are also in agreement with the discussion relating to gender identity [i.e., sex and gender are not the same, and that there are different people whose gender does not match with that assigned at birth, including transgender men and women, intersex persons, other queer gendered persons, and persons with socio-cultural identities such as hijras] as well as the right against discrimination under the Transgender Persons Act 2019.
Similarly, discussion on the provisions of the Transgender Persons Act, 2019 and enumeration of various provisions, remedies it provides, and harmonious construction of its provisions with other enactments, do not need any separate comment. Consequently, we agree with the conclusion [(G(m)] that transgender persons in heterosexual relations have the right to marry under existing laws, including in personal laws regulating marriage. The court’s affirmation, of the HC judgment in Arun Kumar v. Inspector General of Registration is based upon a correct analysis.
Supriya @Supriyo Chakraborty & oth. v. Union of India (2023)
 (2019) Online SCC Madras 8779