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Equality in Love: The Legal Landscape of Same-Sex Marriage

Same-sex marriage refers to the practice of marriage between two individuals of the same gender, typically two men or two women. The legal and social acceptance of same-sex marriage varies across different countries and regions.

Here are some key points about same-sex marriage:
Legalization: Same-sex marriage has been regulated through law, religion, and custom in most countries worldwide. The legal and social responses to same-sex marriage have ranged from celebration to criminalization.

Global Status: The legal status of same-sex marriage varies from one country to another. It is legally recognized in several countries, including Andorra, Argentina, Australia, Austria, Belgium, Canada, Chile, Colombia, Costa Rica, Cuba, Denmark, Ecuador, Estonia, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, Netherlands, New Zealand, Norway, Portugal, Slovenia, South Africa, Spain, Sweden, and the United States.

History in the United States: Same-sex marriage in the United States has a history dating back to the early 1970s when the first lawsuits were filed seeking legal recognition of same-sex relationships. The legal battle for same-sex marriage rights gained significant attention and led to changes in civil marriage laws and benefits for same-sex couples in the United States.

Evolution: The acceptance of same-sex marriage has evolved over time, with many countries and states recognizing the right of same-sex couples to marry. This change has been driven by legal challenges, advocacy, and shifting social attitudes.

The status of same-sex marriage continues to evolve, and it is important to refer to local laws and regulations for the most up-to-date information in a specific region.

High Light of The Case
Supriyo v. Union of India was a case in the Supreme Court of India that challenged the government's refusal to recognize same-sex marriages under the Special Marriage Act. The case was decided on October 17, 2023.

The case was filed by two same-sex couples on November 14, 2022. The first petition was filed by Supriyo Chakraborty and Abhay Dang. The petitions centered around the constitutionality of the Special Marriage Act of 1954.

The petitioners sought legal recognition of same-sex marriages in India.

The five-judge bench, led by the Chief Justice of India, started hearing the petitions in April 2023.

The bench ruled 3:2 against legal recognition of the right to marry for queer couples.

The majority opinion did not find the circular on the right of queer couples to adopt a child to be unconstitutional.

However, the minority opinion held that queer couples have a right to enter into civil unions.

The bench also agreed that intersex persons who identified as either male or female had the right to marry under existing law

The batch consisted of twenty petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act 1954. Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Specifically, they contended that these legislations, in their current form, do not recognize non-heterosexual marriages, thus perpetuating discrimination against the LGBTQIA+ community.

During the course of the hearings, the bench had clarified that it will confine the challenge only to the Special Marriage Act and will not touch personal laws. Thus, the challenge pertaining to the Hindu Marriage Act was not taken up.

During the course of hearings, the Union Government had expressed willingness to constitute a committee to examine whether certain legal rights could be granted to same-sex and queer couples, without legal recognition of their relationship as a "marriage".

This was in response to a query raised by the Court if certain executive instructions could be issued to ensure that same-sex and queer couples have access to welfare measures and social security such as permission to open joint bank-accounts, to name partner as nomince in life insurance policies, PF, pension etc.

What was Govt's Stand?
  • This is legislative domain and not Judiciary's
  • Parliament is the only forum to make such laws.
  • Marriage can only happen between a biological Man and woman
The Supreme Court refused to grant legal recognition for same sex marriages in India. However, all the judges on the bench agreed to direct the Union of India to constitute a committee to examine the rights and entitlements of persons in queer union, without legal recognition of their relationship as a "marriage".

The Judgement was given in 3:2 ratio.
A five-judge bench, led by Chief Justice of India DY Chandrachud and comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and PS Narasimha, had started hearing the petitions on April 18, 2023. After rigorous deliberation, the bench reserved its judgment on May 11, 2023.

Today, the Supreme Court Constitution bench pronounced four judgements- written by CJL DY Chandrachud, Justice SK Kaul, Justice Ravindra Bhat and Justice PS Narasimha respectively.

CJI DY Chandrachud, does not accept center's stand that only parliament can deal with the issue of same sex marriage and not Supreme Court..

It is incorrect to say that marriage is stagnant and unchanging institution.

But in his judgement he held that the court could not strike down or read down the provisions of the Special Marriage Act owing to "institutional limitations" as the same would fall within the domain of the Parliament and the Legislature.

However, the CJI recorded the statement of the Solicitor General, appearing for the Union, that the Union Government would constitute a committee to decide the rights and entitlements of persons in queer unions.

CJI directs the Centre to:
  • Ensure queer community is not discriminated against.
  • Ensure there is no discrimination in access to goods and services.
  • Sensitize the public about queer rights.
  • Create a hotline for the queer community.
  • Create safe houses or Garima grih for queer couples.
  • Ensure inter-sex children are not forced to undergo operations.
  • No person shall be forced to undergo any hormonal therapy.

He also issues guidelines to police to not harass queer people or force family

Further, he held that unmarried couples, including queer couples, could jointly adopt a child.

CARA a government agency laws down rules for adopting children in India.

In that context, the CJI held that Regulation 5(3) of the CARA Regulations. insofar as it prohibited unmarried and queer couples from adopting, were in violation of Article 15 of the Constitution.

Justice SK Kaul concurred with the judgement of the CJI and held that the Special Marriage Act was violative of Article 14 for being discriminatory.

However, similar to the view taken by the CJI, Justice Kaul too held that there were limitations on the court in including queer unions in the Special Marriage Act as the same was for the Parliament to decide.

CJI Chandrachud and Justice SK Kaul gave minority judgement

Justice S Ravindra Bhat too concluded that the Union shall set up a High

Powered Committee to examine the rights and benefits to same sex couples.

He stated that the present case was not one where the Supreme Court could require the State to create a legal status. Differentiating the present case from previous cases pertaining to queer rights, he stated that earlier, the Court's intervention was in instances where the Court protected queer persons from violence or criminalisation based on State's duty to protect citizen's right.

However, the present matter was not the same. He asserted that marriage was a "social institution" and there could not be an unqualified right to marry which was to be treated as a fundamental right.

Justice Bhat further held that the Court could not create a legal framework for queer couples and it was for the legislature to do as there were several aspects pertaining to policy to be taken into consideration.

However, he reiterated that same sex couples had a right to relationships. In his judgement, Justice Bhat held- "All same sex couples have the right to choose their partners. But State cannot be obligated to recognize the bouquet of rights) flowing from such a Union. We disagree with the CJI on this aspect."

While recognising that denial of benefits such as a PF, ESI, pension etc to queer partners may have an adverse and a discriminatory effect, Justice Bhat stated that addressing these concerns may involve a range of policy choices and thus, the High Powered Committee formed by the Union, as submitted by the SG, shall examine these aspects.

However, he disagreed with the CJI on the right of queer couples to adopt and stated that Regulation 5(3) of the CARA regulation could not be held unconstitutional. Justice Hima Kohli concurred with Justice Bhat

Justice PS Narasimha, agreeing with Justice Bhat, stated that there existed no unqualified right to marry and that the right to marriage was a statutory right or flowing from a custom.

He further held that it would not be constitutionally permissible to recognize a right to civil union mirroring a marriage.

On the aspect of the CARA regulations and the right of queer couples to adopt, he agreed with Justice Bhat's view and stated that CARA Regulations could not be held as unconstitutional.

Justice Narasimha further stated that a review of legislative schemes which excludes queer couples from pension, PF, gratuity, insurance etc needed to be undertaken. He stated-

"A review of the impact of the legislative framework in this case requires deliberative exercise and for the same, the legislature is entrusted to do so constitutionally."

Justice Hima Kohli didn't give a separate judgement

All five judges agree there is no fundamental right to marry. Supreme Court refuses to grant constitutional validity to same-sex marriages by a 3-2 majority. Also, no constitutional or fundamental right to civil unions, Centre's proposed high-powered committee to examine concerns of same sex couples, and no right for queer couples to jointly adopt.

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