Supreme Court’s Verdict on Same-Sex Marriages

Themes discussed

Arguments of the petitioners

Fundamental Rights

• The petitioners argued that the right to marry for non-heterosexual couples is implicit in
  • Article 14 (Equality)
  • Article 15 (Non-Discrimination)
  • Article 16 (Equality of Opportunity in Public Employment)
  • Article 19 (Freedom of Speech)
  • Article 21 (Right to Life)

Special Marriage Act (SMA) 1954

• They referred the Section 4, SMA, refers to a marriage in gender-neutral terms, between ‘any two persons’.
• It was advocated to remove the 30-day notice period under Section 5 of the SMA, which requires parties to give a 30-day public notice of their intention to marry.

Minimum Marriageable Age

• For lesbian couples, the minimum age could be prescribed as 18 years, while for gay couples, it could be 21 years.
• For transgender couples, the same ages would apply based on the gender they identify with.

Foreign Marriage Act (FMA) 1969

• Under the FMA, only a marriage against international law could be denied recognition. Since that wasn’t the case here, recognition of same-sex couple marriage was advocated.

Positive Declaration

• They sought a positive declaration from the court to solemnise queer marriages, along with a negative declaration binding the State to not discriminate against them.

Transgender Persons Protection Act 2019

• Asserting that queer persons’ right to marry has already been recognised by the Transgender Persons Protection Act, 2019, flowing from the 2014 NALSA judgement, petitioners argued that all queer identities are part of this term.

Queer couples’ right to adopt a child

• The petitioners argued that the Central Adoption Resource Authority (CARA) guidelines, which does not allow unmarried couples to jointly adopt children, is discriminatory against queer couples who cannot legally marry.
• Individually, queer persons can adopt as single people (However, a single male is not eligible to adopt a girl child)

Themes

Arguments of the respondents

Concept of family

• It is argued that legalising queer marriages will destroy the concept of family, which is the “fundamental building block of society.”

On maintainability & SMA

• It was argued that 160 laws would be impacted in the process of bringing marriage equality.
• Under the SMA, the court cannot give rights to non-heterosexual couples that heterosexual couples don’t have.

Legitimate state interest in regulating marriages

• It was argued the State has a ‘legitimate’ interest in regulating marriages.
• They also cited the future issue where freedom of sexual orientation and autonomy could be raised to challenge the prohibition of incest (sexual intercourse between closely related persons).

Impact on children

• The State is justified in treating heterosexuals and homosexuals differently considering the welfare of children.

All ‘aye’

Majority vs. minority opinions

• Same sex couples do not have a right to marry.
• Transgender persons have a right to marry under the current framework.
• Same-sex couples have a right to choose their partners and cohabit with one another.

• Queer couples do not have the right to adopt (3:2)
• Couples do not enjoy a right to a civil union (3:2)

Prior Verdicts of Supreme Court about the Right to Marry

• 2014 NALSA judgment - Affirmed transgender people’s fundamental rights.
• KS Puttaswamy and Anr. vs. Union of India (2017) - Upheld the fundamental right to privacy.
• Navtej Singh Johar vs. Union of India (2018) - Decriminalised homosexuality by striking off Section 377 IPC.
• Shafin Jahan v Union of India - Recognized the right to choose one’s partner as a facet of the fundamental right to liberty and dignity.
• Shakti Vahini v Union of India - Recognized the right to choose a life partner as a fundamental right.
• The right to choose life partner have sanction of the constitutional law under Articles 19 and 21.
• Deepika Singh vs Central Administrative Tribunal - Recognized “atypical” families, including queer (LGBTQ) marriages, which could not be confined in the traditional parenting roles.