In the Supreme Court of India
(Before Dr D.Y. Chandrachud, C.J. and Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ.)
Writ Petition (Civil) No. 1011 of 2022
Supriyo alias Supriya Chakraborty and Another Vs Union of India
Decided on: October 17, 2023
Citation:2023 SCC OnLine SC 1348,
g. The Constitution does not expressly recognize a fundamental right to marry. An institution cannot be elevated to the realm of a fundamental right based on the content accorded to it by law. However, several facets of the marital relationship are reflections of constitutional values including the right to human dignity and the right to life and personal liberty;
h. This Court cannot either strike down the constitutional validity of Special Marriage Act(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 Indian Succession Act and the Hindu Succession Act 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;
i. The freedom of all persons including queer couples to enter into a union is protected by Part III of the Constitution. The failure of the state to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such unions and grant them benefit under law;
j. In Article 15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only because of the causal relationship between homophobia and sexism but also because the word ‘sex’ is used as a marker of identity which cannot be read independent of the social and historical context;
k. The right to enter into a union cannot be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom is available to all persons regardless of gender identity or sexual orientation;
l.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 threat. Discrimination on the basis of sexual orientation will violate Article 15;
m. Transgender persons in heterosexual relationships have the right to marry under existing law including personal laws which regulate marriage;
n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate marriage;
p. Unmarried couples (including queer couples) can jointly adopt a child. Regulation 5(3) of the Adoption Regulations is ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) is read down to exclude the word “marital”. The reference to a ‘couple’ in Regulation 5 includes both married and unmarried couples as well as queer couples. The principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be obtained if they wish to adopt a child together is equally applicable to unmarried couples who seek to jointly adopt a child. However, while framing regulations, the state may impose conditions which will subserve the best interest and welfare of the child in terms of the exposition in the judgment;
q. The CARA Circular disproportionately impacts the queer community and is violative of Article 15;
r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons to enter into union with benefits under law;
