The Supreme Court on Tuesday delivered the much-awaited verdict on the legalisation of same-sex marriages.
The Constitution Bench of Chief Justice of India D.Y. Chandrachud, Justice Sanjay Kishan Kaul, Justice S. Ravindra Bhat, Justice P.S. Narasimha and Justice Hima Kohli refused to grant legal recognition to same-sex couples.
The Apex Court further refused by 3:2 majority, the extension of right to adopt a child for same-sex couples.
While the majority Bench of Justice Kohli, Justice Bhat and Justice Narasimha denied the right to such couples, CJI Chandrachud and Justice Kaul ruled in that same-sex couples were entitled to recognise their relationships as civil union and could claim consequential benefits.
The minority bench further said that such couples had the right to adopt children and struck down adoption regulations to the extent it prevented the same.
As per the CJI, provisions of the Special Marriage Act could not be struck down or words could not be read into it to allow same-sex marriages.
Justice Kaul said the Special Marriage Act was discriminatory towards queer couples, but concurred with the CJI in holding that it cannot be interpreted to allow same-sex marriages.
The CJI, while noting that queerness was neither urban nor elite concept, said that there is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.
He said the Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
As per the CJI, the Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.
He said freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.
Transgender persons have the right to marry under existing law, he added.
He said queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.
The CJI said the Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.