Source: Supreme Court

Why in News?

A five-judge bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha pronounced the judgment refusing to recognize the same-sex marriage.

• The Supreme Court gave the observation in the case of Supriyo v. Union of India and other connected matters.

What is the Background of Supriyo v. Union of India Case?

• A five judges bench was hearing a batch of petitions upon recognition of same-sex marriages.
• The bench heard 20 petitions challenging the provisions of Special Marriage Act, 1954 (SMA), Hindu Marriage Act, 1955 (HMA), and the Foreign Marriage Act, 1969 (FMA).
• During the hearings, the court refused to comment on personal laws and hence has not heard contentions upon HMA.
• During the hearings, the Central Government stated before the court that it is willing to formulate a committee to provide some rights to same-sex couples without providing a legal recognition to their marriage.
• The court reserved its judgment in May 2023.

What was the Court’s Observation?

• Court asked for formulation of committee to determine the rights of queer couples and held that report submitted by the committee shall be implemented at the administrative level by the Union Government and the governments of the States and Union Territories

What are the Major Aspects Determined by SC for Same-Sex Couples?

• Institutional Limitation:
  • The court said that petitioners are seeking to declare SMA void for excluding queer couple marriages.
  • However, if court do so, it will take the nation back to the pre-independence era where two persons of different religions and caste were unable to marry.
  • And if the court interprets the words itself, it will step into the shoes of legislature, which is not possible because the judicial legislation is not permissible in law.
  • The court held that, “Court is not equipped to undertake an exercise of such wide amplitude because of its institutional limitations”.
• Valid Age to Marry:
  • The court said that deciding valid age for marriage of queer couple is not possible for court.
  • Clause (c) of Section 4 FMA was in question which requires the bridegroom to be at least twenty-one years and the bride to be at least eighteen years of age.
  • Several approaches were proposed for the age of marrying including a common minimum age however the court said that doing so would amount to judicial legislation.
  • And further held, “When there are various options open for a legislative change and policy considerations abound, it is best left for Parliament to engage in democratic decision-making and settle upon a suitable course of action”.
• Atypical Family Unit:
  • The court said that a normal family consists of a mother and a father and later children continue the family cycle.
  • The court further said that “Myriad persons do not follow this blueprint for the creation of a family. They instead have their own, atypical blueprint”.
• Right to Health:
  • Queer persons have right to access mental healthcare and not to be subjected to inhumane and cruel practices or procedures.
• Right to Enter into Abiding Union:
  • The court said that all persons have a right to enter into an abiding union with their life partner. This right, undoubtedly, extends to persons in queer relationships.
  • The court held that any person may enter into a consensual romantic or sexual relationship with another person.
  • Their partner will have several rights as a consequence of the relationship including the right to have the body of deceased partner.
• Transgender Marriage:
  • On transgender marriage the court held that “Whether transgender persons can marry ought to be decided separately from the issues arising under the SMA in relation to homosexual persons or those of a queer sexual orientation”.
  • The court further said that if a transgender person is in a heterosexual relationship and wishes to marry their partner by fulfilling other requirements set out in the applicable law, such a marriage would be recognized by the laws governing marriage.
• Adoption by Queer Couples:
  • The court held that unmarried couples (including queer couples) can jointly adopt a child.

What are the Guidelines of Court on Constitution of Committee for Same Sex Couples?

• The SC gave the following guidelines to Solicitor General of India appearing on behalf of Union Government:
  • The government will constitute a committee chaired by the Cabinet Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions.
  • The Committee shall include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to the queer community as well as members of the queer community.
  • The Committee shall before finalizing its decisions conduct wide stakeholder consultation amongst persons belonging to the queer community, including persons belonging to marginalized groups and with the governments of the States and Union Territories.
• The Committee shall in terms of the exposition in this judgment consider the following:
  • Enabling partners in a queer relationship to be treated as a part of the same family for the purposes of a ration card; and to have the facility of a joint bank account with the option to name the partner as a nominee, in case of death;
  • In terms of the decision in Common Cause v. Union of India (2018), as modified by Common Cause v. Union of India (2023), medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered ‘family’ for this purpose;
  • Jail visitation rights and the right to access the body of the deceased partner and arrange the last rites; and
  • Legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act, 1961, rights flowing from employment such as gratuity and family pension and insurance