New Delhi: While pronouncing the verdict on same-sex marriage, Chief Justice of Supreme Court DY Chandrachud on Tuesday said that a transgender man can marry a woman or vice-versa, but this does not result in the creation of an institution.
While refusing to give marriage equality rights to LGBTQIA+ community in India, the CJI said, “This court cannot compel Parliament or state assemblies to create a new institution of marriage. We also cannot hold the Special Marriage Act unconstitutional just because it doesn’t recognise same-sex marriages, nor can we redraft the law or other legal provisions to substitute man and woman for husband and wife. The judiciary cannot legislate,” he said.
He, however, added that striking down the Special Marriage Act would take the country to the “pre-independence era”.
The five-judge bench, which also included Justices Sanjay Kishan Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, emphasised that they were only considering the legal aspects of the Special Marriage Act and the Foreign Marriage Act and were not recognising non-heterosexual marriages.
The CJI further said the right to marriage is not a fundamental one and it attained significance as a legal institution largely because it’s regulated by the state and comes with a number of material benefits.
He, however, added that 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. “Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21 [of India’s constitution].”
“The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union. A failure to recognise such associations will result in discrimination against queer couples.”
“Material benefits/services given to heterosexual couples & denied to queer couples will also be a violation of their fundamental rights.”
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