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:
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.
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.
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
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
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
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
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,
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
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
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
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
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.