A five-judge Constitution Bench, which rendered its verdict on the plea for marriage equality, produced four distinct judgements. While the bench unanimously agreed that there was no fundamental right to marry, two judges advocated for other significant rights, though their positions did not prevail due to the majority stance.
The Bench exhibited a division of opinions in two crucial areas. Firstly, a split of 3:2 was observed regarding the right to form civil unions, with the majority holding that no such right exists within the current legal framework. Similarly, on the rights of unmarried queer couples to adopt, the Bench was again split 3:2. The majority held that the Union government's guidelines prohibiting unmarried couples from adopting children were legally valid.
Here is what the majority judges said in their dissenting judgements.
Do queer persons have a right to enter into a civil union?
Chief Justice DY Chandrachud and Justice SK Kaul advocated for acknowledging queer civil unions, contending that it would grant material benefits akin to those derived from marriage. In contrast, the remaining three judges on the bench held a different opinion on this matter.
Justice Ravindra Bhat in his concurring opinion with Justice Hima Kohli, argued that establishing a parallel framework for queer couples would necessitate an entirely new legal framework, complete with a distinct set of rights and obligations. While he affirmed the fundamental principle that all queer individuals possess the inherent right to form relationships and choose life partners, he dissented on the Court's direction for the state to establish a new legal framework for formalising such relationships. He expressed reservations about legislating a "civil right to a union" through a new law.
Justice Bhat further argued that creating such a social institution would entail the development of an entirely new legal infrastructure, complete with a spectrum of associated rights and responsibilities. This would necessitate implementing a distinct system for registering civil unions, setting criteria for a valid union, addressing eligibility factors, and dealing with issues such as age restrictions, divorce procedures, alimony, and other rights intricately linked to the institution of marriage. “Ordering a social institution or rearranging existing social structures by creating an entirely new kind of parallel framework for queer couples would require a conception of an entirely different code and a new universe of rights and obligations,” he noted. Justice Bhat maintained that the state was not constitutionally obliged to recognise and provide for such a framework.
Justice PS Narasimha concurred with Justices Bhat and Kohli, asserting that a right to a civil union or a lasting cohabitational relationship with legally enforceable status cannot be situated within Part III of the Constitution, which deals with fundamental rights. Justice Narasimha observed that granting the right to enter into a civil union mandates the State to grant recognition or legal status to these unions, which will yield benefits.
This, in his view, would infringe upon the doctrine of the separation of powers – which deals with the distribution of powers and duties among the legislature, executive and judiciary. He highlighted that framing a positive right (rights that place a duty on the State to provide an individual or a group with benefits which they would not be able to access by themselves) and the ensuing entitlements necessitate the State to regulate such unions and their associated benefits. He argued that mandating the state to create laws recognising civil unions would encroach upon the legislature's domain.
Can unmarried queer couples adopt?
Once again, the Bench displayed a 3:2 divide regarding the right of queer couples to adopt children. Chief Justice Chandrachud and Justice Kaul, in the minority, advocated for the inclusion of unmarried couples, including queer partners, in the adoption process. They argued that the current regulation, which restricts unmarried partners from jointly adopting, is inconsistent with the Juvenile Justice (JJ) Act and Section 57 and constitutes discrimination based on sexual orientation.
Justice Bhat, in the majority opinion, dissented with the CJI, saying, “To read the law in the manner adopted by the learned Chief Justice, with all due respect, would have ‘disastrous outcomes,’ because the ecosystem of law as it exists would be unable to guarantee protection to the said child in the case of breakdown of an unmarried couple, adopting jointly.” He argued that the existing framework emphasises protections and entitlements linked to marriage and that the JJ Act prioritises the "best interest of the child" rather than universalising adoption. According to Justice Bhat, Section 57(2) exclusively applies to joint adoption by married couples, designed to safeguard children in cases of marriage breakdown. This ensures legal safeguards like divorce proceedings, custody arrangements, guardianship, maintenance, and succession for children adopted by married couples. This stance was supported by Justice Kohli and Justice Narasimha.
Dissenting on Justice Bhat’s opinion that permitting unmarried couples to adopt would lead to ‘disastrous outcomes,’ the CJI pointed out that current laws do not differentiate between children of married and unmarried couples once they have been validly adopted. He cited Section 12 of the Hindu Adoptions and Maintenance Act 1956 and Section 63 of the Juvenile Justice (JJ) Act, which establish treating adopted children as legitimate. Therefore, all legal benefits available to children of married couples are equally available to those of unmarried couples who have adopted following due legal procedures.
He further argued that certain aspects of family law, such as maintenance and succession laws, do not differentiate between children of married and unmarried couples if the child has been adopted following due legal procedures. “Further, the breakdown of the relationship of an unmarried couple will not lead to a change in applicable law because the child will continue to be a legitimate child even after the breakdown of the relationship. It is, therefore, unclear what the ‘disastrous outcomes’ referred to, are,” he said.
On the right to marry
All five judges on the Bench unanimously agreed that there is no fundamental right to marry, adding that marriages between queer individuals could not be accommodated within the framework of the Special Marriage Act, 1954.
Chief Justice DY Chandrachud argued against placing an obligation on lawmakers to create an institution they have not yet established. Justices Bhat and Hima Kohli stated that marriage as an institution exists independently of state intervention. They contended that it is beyond the court's jurisdiction to compel the state to confer legal or social status upon marriage. Justice Bhat said the petitioners were seeking state intervention to facilitate marriages between queer couples.
“Civil marriage or recognition of any such relationship, with such status, cannot exist in the absence of statute. The importance of something to an individual does not per se justify considering it a fundamental right, even if that preference enjoys popular acceptance or support,” Justice Bhat said. He further said that this cannot compel the creation of a social institution and in turn, the creation of status, through a statute. “This result - i.e. recognition, can be achieved only by an enacted law,” he argued. He concluded that, while previous judgements, including KS Puttaswamy and Shakthi Vahini, make broad observations about individuals’ choice of partners “as also a reference as to non-conventional relationships” he argued that they cannot be cited “to assert that there exists an unqualified right to marry which requires treatment as a fundamental freedom.”
Justice Narasimha while agreeing with Justice Bhat, articulated that marriage is a fundamental freedom, not an unqualified right guaranteed by the Constitution.
All the judges collectively recognised that transgender individuals engaged in heterosexual relationships possess the right to marry within the existing legal parameters. This means that for a trans woman to legally marry a man in India, she must first undergo the transition process outlined in the Transgender Persons (Protection of Rights) Act of 2019 — a process known to be laborious and time-consuming.
Read: Trans women have always married in India — it’s the law that needs to catch up