SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. V. UNION OF INDIA (SAME SEX MARRIAGE)

CASE NUMBER: 1011/2022
CASE CITATION: W.P.(C) No. 1011/2022; Diary No. 36593/2022
NAME OF COURT: Supreme Court of India
DATE OF JUDGMENT: October 17,2023

PARTIES TO THE CASE
PETITIONERS: Supriya Chakraborty and Abhay Dang
LAWYERS: Mr. Mukul Rohatgi, Sr. Adv Dr. Menaka Guruswamy, Sr. Adv. Ms. Arundhati Katju and
ors.
RESPONDENTS: Union of India
LAWYERS: Mr. R Venkataramani, Attorney General for India Mr. Tushar Mehta, Solicitor General
Mr. K M Nataraj, A.S.G. Mr. Kanu Agrawal and Ors.
BENCH OF JUDGES: CJI D.Y. Chandrachud, J. S.K. Kaul, J. Ravindra Bhat, J. Hima Kohli & J.
P.S. Narasimha

FACTS OF THE CASE

  • The case of Supriyo v. Union of India is a culmination of the cases being filed in Supreme Court of
    India for the consideration to whether Right to Marry and establish family to sexual and gender
    minority is there in India.
  • 5 Judges bench was appointed to hear 20 connected cases brought by 52 petitioners.
  • The petitioners, who are individuals and couples from communities of sexual and gender minorities,
    asked for the recognition of their 1 right to marry and start a family on the grounds of freedom from

1 The right to marry a person of one’s choice is not only underscored in the Universal Declaration of Human Rights, but is also an
integral facet of Article 21 of The Constitution of India, which guarantees the right to life,” said Justice Saurabh Banerjee in a
recent order.

discrimination, equality, dignity, personal liberty, privacy, and autonomy, as well as 2 freedom of
conscience and expression.

  • 3 The Special Marriage Act, 1954 (the Act) and its constitutionality are the main topics of the
    petitions. 4 Section 4(c), which presently limits marriage to a “male” and a “female,” is the subject
    of particular attention.
  • Petitioners argued of the discrimination that a same-sex couple face and depriving them of the
    essential matrimonial rights like, adoption, 5 surrogacy, retirement benefits and employment
    opportunities. They petitioned for making section 4(c) unconstitutional.
  • Argument was basically to legalize the same sex marriage in India and to provide the same-sex
    couples with Fundamental rights, like equality, freedom of expression and human dignity.
  • They have used two significant rulings— 6 NALSA v. Union of India (2014) and 7 Navtej Singh Johar
    v. Union of India (2018)—which guaranteed equal rights for homosexual people in addition to
    recognizing non-binary gender identification.

ISSUES REGARDING THE CASE
 Do the members of the 8 LGBTQ+ community have the right to marry?
 If the members of the LGBTQ+ community have the right to marry, then why don’t supreme
court declare it constitutional?
 Does not giving the LGBTQ+ community, the right to marry and start a family, infringe their
rights under Article 14 of the Indian Constitution?
CONTENTIONS
CONTENTIONS OF THE PETITIONERS:

  • They argued that marriage rules should not exclude couples from communities of sexual and gender
    minorities, citing fundamental rights violations in particular with regard to notice and objection
    procedures in the Special Marriage Act and Foreign Marriage Act.
    2 Article 25 guarantees the freedom of conscience, the freedom to profess, practice, and propagate religion to all citizens. The
    above-mentioned freedoms are subject to public order, health, and morality.
    3 The Special Marriage Act, 1954 is an Act of the Parliament of India with provision for civil marriage for people of India and all
    Indian nationals in foreign countries, irrelevant of the religion or faith followed by either party. The Act originated from a piece of
    legislation proposed during the late 19th century.
    4 the male has completed the age of twenty-one years and the female the age of eighteen years;
    5 Surrogacy is an arrangement, often supported by a legal agreement, whereby a woman agrees to delivery/labour on behalf of
    another couple or person, who will become the child’s parent after birth.
    6 NALSA V. UNION OF INDIA, 2014 INSC 275
    7 Navtej Singh Johar v. Union of India, 2018 INSC 790
    8 An acronym used to describe lesbian, gay, bisexual, transgender, queer or questioning persons or the community.
  • The Supreme Court’s ruling that any rule that does not safeguard an individual’s right to self-
    determination regarding their gender identity and sexual orientation is arbitrary and unreasonable was
    referenced in support of 9 Article 14 of the Indian Constitution, which guarantees the right to equality.
    and they mentioned the case of 10 Lt. Col. Nitisha v. UOI and 11 Deepika Singh v. Central Administrative
    Tribunal.
  • In NALSA v. UOI, 12 Puttaswamy v. UOI, and Navtej Singh Johar v. UOI, the Supreme Court
    established fundamental rights for individuals who identify as sexual and gender minorities. The
    petitioners aimed to grant these communities the ability to marry and start a family by citing various
    articles of the constitution.
  • The argument also found support in rulings from High Courts, such as the Madras High Court’s decision
    in 13 Arun Kumar v. Inspector General of Registration, which held that the Indian Constitution’s various
    articles guaranteeing fundamental rights were violated by refusing to register the marriage of a Hindu
    cisgender man and a Hindu transgender woman.
    CONTENTIONS OF THE RESPONDENTS:
  • The very nature of marriage, ingrained in our social, cultural, and legal framework, presumes a
    partnership between individuals of different genders. Judicial interpretation of this concept ought
    to be precluded, and any modifications ought to be left to capable legislatures.
  • The nature of the marriage differs from one personal law to another, In Islam marriage is considered
    to be a contract and in Hindus, marriage is considered as a sacred union between a man and a
    woman.
  • The Petitioners can’t claim that the Indian Penal Code’s legalization of Section 377 violates their
    basic right to have same-sex marriages recognized by the legal system. In the case of Navtej Singh
    Johar v. Union of India (2018) 10 SCC 1, the Hon’ble Supreme Court made it clear that although
    people have the right to union under 14 Article 21 of the Constitution, this does not imply marriage.
  • Marriages are recognized in India by the personal law of the different religions and this helps with
    the future conflicts and the family matters and all but it doesn’t apply to the case of same-sex
    marriage.

9 Article 14. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory
of India, on grounds of religion, race, caste, sex or place of birth.
10 Writ Petition (Civil) No 1109 of 2020
11 C.A. No 5308/2022
12 Writ Petition (Civil) No 494 of 2012; (2017) 10 SCC 1; AIR 2017 SC 4161
13 W. P. (MD) No. 4125 of 2019
14 Article 21: “Protection of Life and Personal Liberty: No person shall be deprived of his life or personal liberty except according
to procedure established by law.”

  • If there will be the registration of marriage, it would conflict the personal laws made and to whom
    that are codified. It would restrict the personal laws to act upon the same-sex couples as to what
    comes under a prohibited relationship, divorce, alimony, ceremony, rituals and more.
  • The sex mentioned in the various personal laws have been clearly mentioned as female being the
    wife and the male being the husband and the sacred union between them be called a marriage.
    JUDGMENT OF THE COURT
    The Supreme Court rendered an important decision on the legal acceptance of same-sex marriage by a
    vote of 3:2. Three judges made up the majority that refused to recognize same-sex unions legally. They
    said that the freedom to marry is not a basic right and that Parliament has the authority to decide whether
    or not same-sex marriages should be permitted. Additionally, the majority judges ruled that the basic
    rights of same-sex couples are not violated by Section 4(c) of the Special Marriage Act, a crucial piece
    of law in dispute. Their reasoning was based on the idea that same-sex couples have other legal options
    that suit their needs, like civil partnerships and live-in relationships.
    On the other hand, Justices 15 D.Y. Chandrachud and SK Kalal, who dissented, had a different opinion.
    They made it very clear that they believed marriage to be a fundamental right. Moreover, they
    maintained that the basic rights of same-sex couples are in fact violated by Section 4(c) of the Special
    Marriage Act. According to the dissenting judges, a person’s right to life and personal liberty includes
    the freedom to marry. They argued that married individuals of the same sex should have the same rights
    as those of heterosexual couples. This split decision highlights how complicated and divisive the legal
    argument over same-sex marriage is. The majority’s decision entrusts the matter to legislative action,
    while the dissenting judges advocate for the immediate recognition of the fundamental right to marry
    for all couples, irrespective of gender or sexual orientation
    The ruling in Supriyo v. Union of India by the Supreme Court is, all things considered, a mixed bag.
    Although the dissenting opinion offers optimism that the Supreme Court may eventually allow same-
    sex marriage in India, it is a setback for the LGBTQ+ population in that country.
    INFERENCE
    Without a question, the Supriyo v. Union of India verdict by the Supreme Court represents a serious
    loss for the LGBTQ+ community in India. LGBTQ+ rights activists were disappointed and enraged by

15 Chief Justice of India since 2022

the ruling, which denied same-sex marriage legal recognition and gave the Parliament jurisdiction over
the issue.
Nevertheless, in the face of this disappointment, the dissenting opinion expressed by Justices
Chandrachud and Kohli offers some optimism. A ray of hope comes from their dissenting position, in
which they vehemently maintained that same-sex couples’ rights are violated by Section 4(c) of the
Special Marriage Act and that the right to marry is, in fact, a basic right. From their vantage point, it is
possible that the Supreme Court will change its mind and move toward allowing same-sex unions in
India in the future. While the majority opinion delivered a discouraging outcome, the dissenting voices
of Justices Chandrachud and Kohli serve as a reminder that the fight for equality and LGBTQ+ rights
in India continues, and that there may be a path toward a more inclusive and progressive stance on
same-sex marriage in the country.

Shrishti Tanwar
1 ST YEAR, LLB
Manipal University Jaipur