CASE: Supriyo @ Supriya Chakraborty & Anr. Vs Union of India

CITATION: Writ Petition (Civil) No. 1011 of 2022

Date of Judgment: October 17, 2023

PETITIONERS: Supriyo @ Supriya Chakraborty & Anr.

Respondent: Union of India

BENCH: CJI D.Y. Chandrachud, J. S.K. Kaul, J. Ravindra Bhat, J. Hima Kohli & J. P.S. Narasimha

LEGAL PROVISIONS: Articles 14, 15, 19, 21, and 25 of the Indian Constitution, Special Marriage Act of 1954, Hindu Marriage Act of 1955, Foreign Marriage Act of 1969

INTRODUCTION: The case of Supriya Chakraborty and Another v. Union of India marks a watershed moment in the legal landscape of India. Beyond its immediate implications in the realm of reproductive rights and individual autonomy. This case reshaped broader societal narratives and legal paradigms, particularly concerning marriage norms and the rights of the LGBTQ+ community. Its significance reverberated far beyond the courtroom, sparking a cultural and legal shift that has begun to redefine the conventional understanding of marriage.

BACKGROUND: A few legitimate activities have been started by LGBTQ+ people and couples in India looking for acknowledgment of their relationships. In January 2020, Nikesh and Sonu documented a request in the Kerala High Court, later conceded by Justice Anu Sivaraman. In September 2020, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani, and G. Oorvas sought a comparable request in the Delhi High Court, conceded by Chief Justice of High Court D.N. Patel and Justice Prateek Jalan. Consequently, in November 2022, Supriya Chakraborty and Abhay Darn, alongside Parth Phiroze Mehrotra and Uday Raj Anand, recorded a request in the High Court, conceded by Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli. The High Court coordinated the exchange of nine related petitions from high courts to be viewed as together. On Walk 15, 2023, the High Court conceded 20 associated petitions from 52 sexual and orientation minority people, including 17 couples. The solicitors fundamentally looked for acknowledgment under mainstream marriage regulations, testing the defendability of notice and complaint arrangements. Some, distinguishing as rehearsing Hindus, contended against their prohibition from the Hindu Marriage Act, referring to an infringement of their strict opportunity. Legitimate portrayal included various supporters, with the High Court delegating Advocate Arundhati Katju and Kanu Agrawal as Nodal counsel for the applicants and respondents, individually. Head legal officer R. Venkataramani and Solicitor General Tushar Mehta addressed the respondents.

FACTS: This case has been in feature starting from the start of 2023, current realities of the case included a writ petition being documented by the two same-sex couples at the High Court on November fourteenth, 2022. Supriyo Chakraborty and Abhay Darn were the principal solicitors for the case. Parth Phiroze Merhotra and Uday Raj Anand documented the subsequent appeal. The applicants tested the legitimacy of Section 4 (c) of the Special Marriage Act, 1954 [1]on the ground that the arrangement oppresses same-sex couples by denying them advantages, for example, reception, surrogacy, and work and retirement benefits. The High Court moved comparative petitions to itself which were forthcoming under the watchful eye of High Courts. These different Petitions tested the authorizations including the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969. On May 11, 2023, the 5-judge Seat reserved judgment following 10 days of hearings. On October 17, 2023, the 5-Judge Seat articulated its decision on petitions looking for marriage balance for LGBTQIA+ people.

ISSUES RAISED:

Whether the Supreme Court has the power to hear this case?

Does a Fundamental Right to marry exist?

Do queer couples have the right to marry? 

Is the Special Marriage Act, of 1954 unconstitutional?

Can the right to marry by queer be read into the provisions of the Special Marriage Act, 1954 by purposive interpretation?

Can unmarried and queer couples adopt?

Can transgender persons in heterosexual relationships marry under existing laws?

CONTENTION BY PETITIONER

The petitioners contended that the fundamental right to marry an individual of one’s own choice falls under Articles 14, 15, 19, 21, and 25 of the Constitution, and any prohibition or segregation, as consolidated in section 4(c)[2] and different arrangements of the SMA, is ultra-vires the Constitution. To deny their entitlement to marry violates Articles 14, 15, 19, 21 and 25. Article 21 envelops the right to joy, which incorporates a satisfying association with an individual of one’s own choice.

Every person is entitled to marry someone of their choice. Queer people are equally entitled to the exercise of this right. The SMA ought to be read in a gender-neutral manner. Gendered terms such as “husband” and “wife” ought to be read as “spouse.”

The law defines “family” and “household” broadly and is not limited to a “biological” man and woman and their children. Surrogacy and adoption are available only to married couples, thus, denying LGBTQ couples the right to found a family;

It denies LGBTQIA+ persons equal protection of the laws. Non-recognition of same-sex and gender-non-conforming marriage causes prejudice to LGBTQIA+ persons and denies them rights under social welfare and beneficial legislation. It is manifestly arbitrary to exclude LGBTQIA+ persons from the SMA. There is no fair or reasonable justification to exclude LGBTQIA+ couples from the institution of marriage.

There is no constitutionally valid, intelligible differentia between LGBTQIA+ and non-LGBTQIA+ persons. The classification in the present case is based only on the sexual orientation and gender identity of the parties to a marriage, which is constitutionally impermissible. Further, there is no rational nexus with the object sought to be achieved by the SMA. The object of the SMA is to provide a civil form of marriage for couples who cannot or choose not to marry under their personal law. The exclusion of LGBTQ couples from the SMA has no rational nexus with this object

CONTENTIONS BY RESPONDENT

Courts can use the interpretative tool of reading-in only when the stated purpose of the law is not achieved. Since the purpose of SMA is to regulate heterosexual marriages, this Court cannot read words into the enactment to expand its purview beyond what was originally conceptualized

The Constitution does not recognize the right to marry. An expression of a person’s sexuality is protected under Article 19(1) (a) of the Constitution. However, marriage cannot be traced to the right to freedom of expression or the right to form unions under Article 19(1)(c);

The State is not under an obligation to grant legal recognition to every type of relationship. The State only recognizes relationships when there exists a legitimate state interest. The State has a legitimate State interest in legally recognizing heterosexual relationships for the sustenance of society

The Courts do not have the power to decide if legal recognition can be granted to a union of non-heterosexual individuals. This is an issue which must necessarily be decided by the legislature, being the elected representatives of the citizens.

RATIONALE

The issue of whether the Constitution recognizes the right to marry did not arise before the Hon’ble Supreme Court in Justice KS Puttaswamy , Shafin Jahan , and Shakti Vahini .The decisions in Navtej (supra) and Justice KS Puttaswamy (9J)  (supra) recognize the right of queer couples to exercise the choice to enter into a union. This relationship is protected from external threats. Discrimination based on sexual orientation will violate Article 15.

In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, medical practitioners must 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;

Therefore the Hon’ble Supreme Court couldn’t either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court cannot read words into the provisions of the SMA and provisions of other allied laws such as the ISA and the HSA because that would amount to judicial legislation. The Court in the exercise of the power of judicial review must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.

JUDGEMENT

All the judges unanimously agreed that there is no absolute right to marriage, and same-sex couples cannot assert it as a fundamental right. The Hon’ble Supreme Court also unanimously rejected the challenge to provisions of the Special Marriage Act.

The majority of judges also asserted that civil unions between same-sex couples are not legally recognized and that they cannot claim the right to adopt children

A high-powered committee (HPC) chaired by the Cabinet Secretary, appointed by the Central Government, should comprehensively examine factors related to same-sex marriage, considering the input of all stakeholders, states, and union territories.

The language utilized in the arrangements thereof e.g., ‘lady’, ‘a couple’, ‘ in the case is verification of a positive that the lawmaking body in making these regulations never expected that they ought to apply to any association other than hetero relationships. The terms utilized are explicit, being prepared to do just a single conceivable definition. The court ought to neither take on a development that would overcome such purpose nor would it be a good idea for it to grow the meaning of marriage for such classes who were never intended to be covered under it, thus this judgment has created such importance and developed a keen interest in the consciousness of the public.

By: Siddharth Misra

Ramaiah Institute of Legal Studies, Bangalore


[1] the male has completed the age of twenty-one years and the female the age of eighteen years…

[2] Khule, Bhakti. “Applicability of Special Marriage Act, 1954 to Same-Sex Marriage.” Indian JL & Legal Rsch. 1 (2021): 1

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