In a pivotal development, review petitions have been submitted against the Supreme Court’s judgment which declined to grant legal recognition to same-sex marriages in India. The Constitution Bench, led by Chief Justice of India (CJI) DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had ruled on October 17, 2023, that
“the law as it stands today does not recognise the right to marry or the right of same-sex couples to enter into civil unions.” They emphasized that “it is upto the Parliament to make laws enabling the same.”
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The Court’s decision was unanimous in stating that
“there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right.”
The challenge to the provisions of the Special Marriage Act was also unanimously turned down by the Court. The majority, consisting of Justices Bhat, Kohli, and Narasimha, asserted that
“civil unions between same-sex couples are not recognised under law and they cannot claim right to adopt children either.”
However, in a notable divergence, CJI Chandrachud and Justice Kaul, in their separate minority opinions, opined that
“same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits.” They further stated that “such couples have the right to adopt children”
and invalidated adoption regulations
“to the extent it prevented the same.”
The Court’s judgment also highlighted that
“the Supreme Court could not legislate upon queer marriages as the same would violate the doctrine of separation of power and would amount to entering the domain of the legislature.”
They unanimously agreed that
“the Union of India, as per its earlier statement, shall constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a ‘marriage’.”
The Court underscored that
“queer couples have a right to cohabit without any threat of violence, coercion of interference”
but refrained from passing any directions to formally recognize such relationships as marriages.
Furthermore, the Court unanimously agreed that
“transgender persons in heterosexual relationships had the right to marry under existing laws including personal laws which regulate their marriage.”
In a split decision (3:2), the Supreme Court denied queer couples “the right to adopt children,” with CJI Chandrachud and Justice Kaul dissenting.
Udit Sood, one of the original petitioners, has initiated the review petition.
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