Supreme Court Declines to Recognize Same-Sex Marriages

October 18, 2023

On October 17, 2023, a five-judge Constitution Bench, led by Chief Justice of India D Y Chandrachud, issued a unanimous verdict declining to recognize same-sex marriages and civil unions for non-heterosexual couples.

No Fundamental Right to Marry

All five judges on the Bench, including the CJI, agreed that there is no fundamental right to marry under the Indian Constitution.
Interpretation of the Special Marriage Act, 1954 to allow same-sex marriage using gender-neutral language was deemed unfeasible.
Striking down gender-restrictive provisions of the SMA was rejected as it could disrupt the legal framework for interfaith and inter-caste couples.

Minority Opinion on Civil Unions

Four of the five judges wrote individual opinions.
Justice Bhat, Justice Kohli, and Justice Narasimha formed the majority, while CJI Chandrachud and Justice Kaul wrote minority opinions in favor of extending civil unions to same-sex couples.
A ‘civil union’ offers certain legal rights and responsibilities but lacks the same recognition as marriage.
The minority view argued that civil union status should entail a “bouquet of rights” for same-sex couples.

Cabinet Committee for Rights Consideration

The Court acknowledged the need to examine rights for non-heterosexual couples.
A high-level Cabinet committee was tasked with exploring rights such as joint bank accounts, beneficiary status, medical decisions, and more for same-sex spouses.

Adoption Regulations Struck Down

The minority view by CJI Chandrachud and Justice Kaul struck down specific guidelines by the Central Adoption Resource Authority (CARA) that disallowed same-sex or unmarried couples from jointly adopting a child.
They argued that it’s discriminatory to assume that only married, heterosexual couples can provide a safe space for raising children.

Limited Changes for Queer Couples

The judgment did not recognize same-sex marriages or civil unions but acknowledged the right to choose partners and live-in relationships.
The court emphasized that family laws disproportionately exclude the queer community.
The responsibility for legal reforms and inclusivity in family law was placed on the legislature.

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