Supreme Court of India

SUPRIYO @ SUPRIYA CHAKRABORTY & ANRversusUNION OF INDIA

Citation: 2023 INSC 920
Decided: 17 October 2023
Disposal: Disposed off
Bench: D Y CHANDRACHUD

Holding

There is no unqualified right to marriage under the Constitution, and the court cannot direct the creation of a legal framework for same-sex marriage; the legislature is the appropriate forum for such recognition.

Summary

The Supreme Court of India considered a batch of petitions seeking legal recognition of same-sex marriage under the Special Marriage Act, 1954, and other laws. The Court held that there is no fundamental right to marry under the Constitution, and the Special Marriage Act is not unconstitutional for excluding same-sex couples. However, the Court recognized the right of queer persons to enter into unions and cohabit, and directed the government to form a high-powered committee to examine and recommend entitlements for such couples. On adoption, the Court upheld the requirement of marital status for joint adoption under the Juvenile Justice Act and CARA regulations, but noted the need for further policy consideration. Transgender persons in heterosexual relationships were held to have the right to marry under existing law. The Court also issued directions to protect queer couples from discrimination and violence. The petitions were disposed of with these directions.

Issues considered

Whether there is a fundamental right to marry under the Constitution.
Whether the Special Marriage Act, 1954 is unconstitutional for excluding same-sex couples.
Whether the Foreign Marriage Act, 1969 is unconstitutional for excluding same-sex couples.
Whether Regulations 5(2)(a) and 5(3) of the Adoption Regulations are unconstitutional for excluding LGBTQ couples from joint adoption.
Whether transgender persons in heterosexual relationships have the right to marry under existing law.
Whether queerness is un-Indian or urban/elite.
Scope of judicial review and separation of powers in recognizing same-sex marriage.

Legislation cited

Adoption Regulations, 2022s. 5(2)(a), s. 5(3)
Constitution of Indias. 14, s. 15, s. 19, s. 21, s. 245, s. 246, s. 25, s. 32, s. Entry 5 of List III
Foreign Marriage Act, 1969s. 17, s. 4
Indian Penal Code, 1860s. 377
Juvenile Justice (Care and Protection of Children) Act, 2015s. 2(49), s. 57, s. 63
Special Marriage Act, 1954s. 19, s. 20, s. 21, s. 21A, s. 27, s. 2(b), s. 31, s. 36, s. 37, s. 4
Transgender Persons (Protection of Rights) Act, 2019s. 2(k), s. 3

Subjects

LGBTQ rightssame-sex marriageright to marryconstitutional lawequalitynon-discriminationjudicial reviewseparation of powersadoptiontransgender rightsSpecial Marriage Actcivil union

Judgment

[2023] 16 S.C.R. 1209 : 2023 INSC 920

CASE DETAILS
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR.
v.
UNION OF INDIA
(Writ Petition (Civil) No. 1011 of 2022)
OCTOBER 17, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI,
SANJAY KISHAN KAUL, S. RAVINDRA BHAT, HIMA KOHLI
AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]
HEADNOTES
Issues for consideration: The issues were primarily two-fold: (a) the
status of the right to marry for LGBTQ+ couples and (b) depending upon
the answer to the ﬁrst, the remedy that must ensue.
The petitioners (members of LGBTQ community)asserted that
marriage is an evolving social institution, capable of embracing the union
of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably)
individuals and necessitating state recognition. On the other, the respondents
asserted that the institution of marriage rests on certain constant and
unchanging premises, the most prominent of which is that it is a heterosexual
union. The common ground on which the petitioners claimed relief was
that LGBTQ+ persons are entitled to solemnize and register their marriage
– in other words, they claimed a right to legal recognition of their unions
within the marriage fold. The petitioners relied on fundamental rights to
equality and non-discrimination, of dignity and autonomy and of expression
and association, and speciﬁcally, most petitioners focused on Section 4(c)
of the Special Marriage Act, 1954 (SMA) as well as the ﬁrst and second
schedules thereof, to state that particular references to “husband” or “wife”
in its provisions are to be read “down”, and a neutral expression needs to
substituted, instead. The issue was whether the Special Marriage Act, 1954
is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as
it does not provide for the solemnization of marriage between same-sex,
gender non-conforming or LGBTQ couples.
Ed. Note: Separate judgments were pronounced by Hon’ble Dr. Dhananjaya Y. Chandrachud,
Chief Justice of India, Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice S.
Ravindra Bhat (on behalf of himself and Hon’ble Ms. Justice Hima Kohli) and Hon’ble Mr.
Justice Pamidighantam Sri Narasimha.
1209
1210 SUPREME COURT REPORTS [2023] 16 S.C.R.

Some of the prayers also related to the right of such couples to
adopt under existing laws in India. The issue was whether Regulations
5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption
Regulations framed by the Central Adoption Resource Authority
(CARA) are unconstitutional and ultra vires the Juvenile Justice (Care
and Protection of Children) Act, 2015 insofar as they exclude LGBTQ
couples from joint adoption.
Also, extensive submissions were advanced on the various forms of
violence and discrimination that society and the state machinery inﬂict upon
the queer community, and especially queer couples; and directions were
sought to obviate such violence and discrimination.
Marriage – Conception and signiﬁcance of – Right to marriage –
Status of – If a fundamental right – Conferring legal status for union
or relationship – Prerogative of legislature or court:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]:
Marriage as an institution is prior to the State, i.e., it precedes it – The status
is still, not one that is conferred by the State (unlike the license regime in
the US) – The marriage structure exists, regardless of the State, which the
latter can utilise or accommodate, but cannot be abolished as a concept –
Under this view, terms of marriage are set, to a large extent, independently
of the State – Its source is external to the State – That source deﬁnes the
boundaries of marriage – This implies that State power to regulate marriage
does not sit easy with the idea of marriage as a fundamental right – There is
no unqualiﬁed right to marriage except that recognised by statute including
space left by custom – Civil marriage or recognition of any such relationship,
with such status, cannot exist in the absence of statute – An entitlement to
legal recognition of the right to union – akin to marriage or civil union, or
conferring legal status upon the parties to the relationship can be only through
enacted law – A sequitur of this is that the court cannot enjoin or direct the
creation of such regulatory framework resulting in legal status. [Paras 45,
47 and 149] – Held (per Pamidighantam Sri Narasimha, J.) (Concurring
with S. Ravindra Bhat, J.): Marriage is a social institution, and in our
country, it is conditioned by culture, religion, customs and usages – The
institutional space of marriage is conditioned and occupied synchronously by
legislative interventions, customary practises, and religious beliefs – Given
the nature of marriage as an institution, the right to choose a spouse and
the right of a consenting couple to be recognized within the institution of
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marriage, cannot but be said to be restricted – There is no unqualiﬁed right
to marriage guaranteed by the Constitution, that qualiﬁes it as a fundamental
freedom – Right to a civil union or an abiding cohabitational relationship
conferring a legally enforceable status cannot be situated within Part III of
the Constitution of India – The right to marriage is a statutory right, and
to the extent it is demonstrable, a right ﬂowing from a legally enforceable
customary practice – In the exercise of such a right, statutory or customary,
the State is bound to extend the protection of law to individuals, so that they
can exercise their choices without fear and coercion – The claim of the right
to marry, de-hors the existing statutory framework, is nothing but a claim to
create a legally and socially enforceable status – Marriage laws do not stand
in isolation, they interact in multifarious ways with succession, inheritance
and adoption laws, to name a few – Creation of social institutions and
consequent re-ordering of societal relationships are ‘polycentric decisions’,
which have “multiplicity of variable and interlocking factors, decisions on
each one of which presupposes a decision on all others”, decisions that
cannot be rendered by one stroke of the judicial gavel. [Paras 4, 5, 12, 14]
– Held (per Dr. Dhananjaya Y. Chandrachud, CJI): There is no universal
conception of the institution of marriage, nor is it static – Marriage has
attained signiﬁcance as a legal institution largely because of regulation by
the State – By recognizing a relationship in the form of marriage, the State
grants material beneﬁts exclusive to marriage – The State has an interest in
regulating the ‘intimate zone’ to democratize personal relationships – 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 [Para 340] – Held
(per Sanjay Kishan Kaul, J.): Marriage as an institution developed
historically and served various social functions – It was only later in its long
history that it came to be legally recognized and codiﬁed – However, these
laws regulated only one type of socio-historical union, i.e., the heterosexual
union. [Para 8]
LGBTQ community / Queer persons – Is queerness ‘un-Indian’ –
Is it urban or elite – Historical prevalence of non-heterosexual unions:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): Queerness is a
natural phenomenon known to India since ancient times – It is not urban
or elite.[Para 340] – Held (per S. Ravindra Bhat, J.) (for himself and
1212 SUPREME COURT REPORTS [2023] 16 S.C.R.

Hima Kohli, J.) (Concurring): Queerness is a natural phenomenon that
is neither urban or elite [Para 2] – Held (per Sanjay Kishan Kaul, J.)
(also concurring): Non-heterosexual unions were well-known to ancient
Indian civilisation as attested by various texts, practices, and depictions of
art – Same-sex unions were recognised in antiquity, not simply as unions
that facilitate sexual activity, but as relationships that foster love, emotional
support, and mutual care – It would be misconceived to claim that non-
heterosexual unions are only a facet of the modern social milieu – There
was existence of non-heterosexual unions, despite continued eﬀorts towards
their erasure by the heteronormative majority. [Paras 5, 6, 9]
LGBTQ community / Queer persons – Rights of – Right to union
or relationship – Discriminatory impacts on queer couples – Restrictions
– Discrimination on the basis of sexual orientation – Issue whether legal
recognition in the form of marriage can be given to non-heterosexual
relationships – Judicial review and separation of powers – Court, if
vested with the authority to decide the issue –Words and Phrases – “Sex”
and “Sexual orientation” – Constitution of India – Arts. 15, 21 and 245
and 246 r/w Entry 5 of List III to Seventh Schedule:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli,
J.)]: The court may feel the wisdom of a measure or norm that is lacking;
nevertheless, its role is not to venture into functions which the Constitution
has authorised other departments and organs to discharge – It is one thing
for this Court, to commend to the State, to eliminate the discriminatory
impact of the intersections with laws and publicly administered policies and
institutions, upon non-heterosexual couples, and entirely another, to indirectly
hold that through a conﬂation of positive obligations cast on the State, that
such individuals’ right to choice to cohabit and form abiding relationships,
extends to the right (or some entitlement) to a legally recognised union
that must be actualized by State policy/legislation – Queer persons are not
precluded from celebrating their commitment to each other, or relationship,
in whichever way they wish, within the social realm – Queer and LGBTQ+
couples too have the right to union or relationship (under Article 21) – “be
it mental, emotional or sexual” ﬂowing from the right to privacy, right to
choice, and autonomy – This, however, does not extend to a right to claim
entitlement to any legal status for the said union or relationship – There are
almost intractable diﬃculties in creating, through judicial diktat, a civil right
to marry or a civil union, no less, of the kind that is sought by the petitioners
(members of LGBTQIA+ community) – “Ordering a social institution” or
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re-arranging existing social structures, by creating an entirely new kind of
parallel framework for non-heterosexual couples, would require conception
of an entirely diﬀerent code, and a new universe of rights and obligations –
However, equality and non-discrimination are basic foundational rights – The
indirect discriminatory impacts in relation to earned or compensatory beneﬁts,
or social welfare entitlements for which marital status is a relevant eligibility
factor, for queer couples who in their exercise of choice form relationships,
have to be suitably redressed and removed by the State – These measures need
to be taken with expedition – This court cannot within the judicial framework
engage in this complex task; the State has to study the impact of these policies,
and entitlements – Union shall set up a high-powered committee chaired by
the Union Cabinet Secretary, to undertake a comprehensive examination of all
relevant factors – In the conduct of such exercise, the concerned representatives
of all stakeholders, and views of all States and Union Territories shall be taken
into account [Paras 69, 136, 139 and 149] – Held (per Pamidighantam Sri
Narasimha, J.) (Concurring): The rights of LGBTQ+ persons, hitherto
recognized by the Court, are the right to gender identity, sexual orientation, the
right to choose a partner, cohabit and enjoy physical & mental intimacy – In
the exercise of these rights, they have full freedom from physical threat and
from coercive action, and the State is bound to aﬀord them full protection of
the law in case these rights are in peril – The question of marriage equality
of same sex/LGBTQ+ couples did not arise for consideration in any of the
previous decisions of this Court, including the decision in Navtej Singh
Johar and NALSA – Consequently, there cannot be a binding precedent on
this count – It would not be constitutionally permissible to identify a right
to a union or an abiding cohabitational relationship mirroring the institution
of marriage – In positively mandating the State to grant recognition or legal
status to ‘unions’ from which beneﬁts will ﬂow, the doctrine of separation of
powers will be violated. [Paras 4, 16, 17] – Held (per Dr. Dhananjaya Y.
Chandrachud, CJI) (Dissenting): This Court is vested with the authority to
hear this case – The freedom of all persons including queer couples to enter
into a union is protected by Part III of the Constitution – Under Article 32,
the Supreme Court has the power to issue directions, orders, or writs for the
enforcement of the rights in Part III of the Constitution –Under Articles 245 and
246 of the Constitution read with Entry 5 of List III to the Seventh Schedule,
it lies within the domain of Parliament and the State legislatures to enact
laws recognizing and regulating queer marriage – 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
1214 SUPREME COURT REPORTS [2023] 16 S.C.R.

regime – The State has an obligation to recognize such unions and grant them
beneﬁt under law – In Art.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 – The right to
enter into a union cannot be restricted based on sexual orientation – Such a
restriction will be violative of Art.15 – Thus, this freedom is available to all
persons regardless of gender identity or sexual orientation – The decisions in
Navtej and Justice KS Puttaswamy (9J) 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 Art.15 – The right to enter into a union is also grounded in Article
19(1)(e) – Union Government, State Governments, and Governments of
Union Territories not to discriminate against the freedom of queer persons
to enter into union with beneﬁts under law – Assurance of the Solicitor
General that the Union Government will constitute a Committee chaired by
the Cabinet Secretary for the purpose of deﬁning and elucidating the scope of
the entitlements of queer couples who are in unions – The Committee shall
inter alia consider the following: (i) enabling partners in a queer relationship
(a) to be treated as a part of the same family for the purposes of a ration card;
and (b) to have the facility of a joint bank account with the option to name
the partner as a nominee, in case of death; and (ii) legal consequences such as
succession rights, maintenance, ﬁnancial beneﬁts such as under the Income
Tax Act 1961, rights ﬂowing from employment such as gratuity and family
pension and insurance – The report of the Committee be implemented at the
administrative level by the Union Government and the governments of the
States and Union Territories. [Paras 226, 340] – Held (per Sanjay Kishan
Kaul, J.) (Dissenting): Non-heterosexual unions are entitled to protection
under our Constitutional schema – Non-heterosexual unions and heterosexual
unions/marriages ought to be considered as two sides of the same coin, both
in terms of recognition and consequential beneﬁts – This moment presents an
opportunity of reckoning with this historical injustice and casts a collective
duty upon all constitutional institutions to take aﬃrmative steps to remedy
the discrimination – Legal recognition of non-heterosexual unions represents
a step forward towards marriage equality – At the same time, marriage is
not an end in itself – Our Constitution contemplates a holistic understanding
of equality, which applies to all spheres of life – The practice of equality
necessitates acceptance and protection of individual choices – The capacity of
non-heterosexual couples for love, commitment and responsibility is no less
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worthy of regard than heterosexual couples – Let this autonomy be preserved,
so long as it does not infringe on the rights of others. [Paras 10, 19, 33]
LGBTQ / Queer persons – Transgenders and Intersex persons –
Entitlement to marriage – Transgender persons in heterosexual persons
can marry under existing law – Transgender Persons (Protection of
Rights) Act, 2019 – s.3 – Constitution of India – Art.15:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The gender of a
person is not the same as their sexuality – A person is a transgender person
by virtue of their gender identity – A transgender person may be heterosexual
or homosexual or of any other sexuality – If a transgender person is in a
heterosexual relationship and wishes to marry their partner (and if each of them
meets the other requirements set out in the applicable law), such a marriage
would be recognized by the laws governing marriage –This is because one
party would be the bride or the wife in the marriage and the other party would
be the bridegroom or the husband – The laws governing marriage are framed
in the context of a heterosexual relationship – Since a transgender person can
be in a heterosexual relationship like a cis-male or cis-female, a union between
a transwoman and a transman, or a transwoman and a cisman, or a transman
and a ciswoman can be registered under Marriage laws – The transgender
community consists of inter alia transgender men and transgender women –
A transgender man has the right to marry a cisgender woman under the laws
governing marriage in the country, including personal laws – Similarly, a
transgender woman has the right to marry a cisgender man – A transgender
man and a transgender woman can also marry – Intersex persons who identify
as a man or a woman and seek to enter into a heterosexual marriage would
also have a right to marry – Any other interpretation of the laws governing
marriage would be contrary to s.3 of the Transgender Persons Act and Article
15 of the Constitution – Transgender persons in heterosexual relationships have
the right to marry under existing law including personal laws which regulate
marriage – Intersex persons who identify as either male or female have the
right to marry under existing law including personal laws which regulate
marriage. [Paras 277, 340] – Held [per S. Ravindra Bhat, J. (for himself
and Hima Kohli, J.)] (Concurring): Transgender persons in heterosexual
relationships have the freedom and entitlement to marry under the existing
statutory provisions. [Para 149].
LGBTQ community / Queer persons – Right of queer persons to
adopt children – By s.57(2) of the JJ Act, consent of both the spouses
1216 SUPREME COURT REPORTS [2023] 16 S.C.R.

for adoption is necessary (“shall be required”) – In furtherance of
s.57(5) which delegates power to prescribe any other criteria, the
Central Adoption Resource Authority (CARA) notiﬁed regulations with
Regulation 5(3) in express terms excluding unmarried couples from
adopting by prescribing the condition that the couple must have been
in two years of a ‘stable marital relationship’ – Whether the regulations
relating to adoption were ultra vires the parent enactment – the JJ Act,
and arbitrary for classifying couples on the basis of marital status, for
the purpose of joint adoption – Juvenile Justice (Care and Protection
of Children) Act, 2015 – Constitution of India – Art. 15 – Adoption:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]
(with Pamidighantam Sri Narasimha, J. concurring) (Majority opinion):
This is not a case of delegated legislation being ultra vires the parent Act
– The legislative choice, of limiting joint adoption only to married couples
needs to be understood in the broader context of the JJ Act, and its purpose
– which is the best interest of the child are paramount – The parent Act, and
delegated legislation, both are clear that a prospective adoptive parent can be
a single person (whether unmarried, widower, etc.) and on them, there exists
no restriction other than on a single male being barred from adopting a girl
child – The restriction of ‘consent’ of partner, applies only in the case of a
couple –This is because the child will enter into a family unit – consisting
of two parents, as a result of the adoption and will in reality, enjoy the
home that is made of both partners – Acceptance, therefore, of the other
partner, is imperative; it would not be in the best interest of the child if one
of the partners was unwilling to take on the responsibility – Also, it is not
a case for reading down or other interpretive construction – All marriages
may not provide a stable home, and a couple tied together in marriage are
not a ‘morally superior choice’, or per se make better parents – However,
the fact that Parliament has made the legislative choice of including only
‘married’ couples for joint adoption (i.e., where two parents are legally
responsible), arises from the reality of all other laws wherein protections
and entitlements, ﬂow from the institution of marriage – To read down
‘marital’ status as proposed, may have deleterious impacts – Reading down
of the provision as sought for would result in the anomalous outcome that
heterosexual couples who live together, but choose not to marry, may adopt
a child together and would now be indirect beneﬁciaries, without the legal
protection that other statutes oﬀer – making it unworkable – Regulation 5(3)
of the CARA Regulations cannot be held void on the grounds urged – At the
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same time, CARA and the Central Government should appropriately consider
the realities of de facto families, where single individuals are permitted to
adopt and thereafter start living in a non-matrimonial relationship – In an
unforeseen eventuality, the adopted child in question, could face exclusion
from the beneﬁts otherwise available to adopted children of married couples
– This aspect needs further consideration, for which the court is not the
appropriate forum – No matter how much one empathizes with the outcome
sought, the means to arriving at such a destination, must also be legally
sound, and keep intact, the grand architecture of our Constitutional scheme
– It is not that unmarried couples – whether queer or heterosexual– are not
capable or suitable, to be adoptive parents – Given the objective of s.57
and other allied provisions of the JJ Act, which is beneﬁcial for children,
the State as parens patriae needs to explore every possibility and not rule
out any policy or legislative choice to ensure that the maximum welfare
and beneﬁts reach the largest number of children in need of safe and secure
homes. [Paras 123, 124, 125, 127, 128, 130, 133, 149, 166] – Held (per
Dr. Dhananjaya Y. Chandrachud, CJI) (Dissenting): Unmarried couples
(including queer couples) can jointly adopt a child – Regulation 5(3), though
facially neutral, indirectly discriminates against atypical unions (such as
the relationship between non-heterosexual partners) which have not been
recognised by the State – Regulation 5(3) 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. [Para 340].
Special Marriage Act, 1954 (SMA) – Challenge to SMA and allied
laws, on the ground of under classiﬁcation – Not tenable – Prayer for
reading of their provisions in a ‘gender neutral’ manner so as to enable
same-sex marriage – Not sustainable – Judicial Review –Scope:
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The SMA was
enacted to enable persons of diﬀerent religions and castes to marry – If
the SMA is held void for excluding same-sex couples, it would take India
back to the pre-independence era where two persons of diﬀerent religions
and caste were unable to celebrate love in the form of marriage – Such a
1218 SUPREME COURT REPORTS [2023] 16 S.C.R.

judicial verdict would not only have the eﬀect of taking the nation back to
the era when it was clothed in social inequality and religious intolerance
but would also push the courts to choose between eradicating one form of
discrimination and prejudice at the cost of permitting another – If this Court
reads words into the provisions of the SMA and provisions of other allied
laws, it would in eﬀect be entering into the realm of the legislature – This
Court cannot either strike down the constitutional validity of 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 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 –
Whether a change should be brought into the legislative regime of the SMA
is for Parliament to determine. [Paras 204, 207, 208 and 340] – Held [per S.
Ravindra Bhat, J. (for himself and Hima Kohli, J.)] (Concurring) : The
challenge to the SMA on the ground of under classiﬁcation is not made out –
Further, the petitioner’s prayer to read various provisions in a ‘gender neutral’
manner so as to enable same-sex marriage, is unsustainable – Exclusion or
under inclusion, per se, cannot be characterised as discriminatory, unless
the excluded category of persons, things or matters, which are the subject
matter of the law (or policy) belong to the same class (the included class) –
If one looks at the enacted provisions, especially Sections 19-21 and 21A,
Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that
the sole intention was to enable marriage (as it was understood then, i.e.,
for heterosexual couples) of persons professing or belonging to diﬀerent
faiths, an option hitherto available, subject to various limitations – There
was no idea to exclude non-heterosexual couples, because at that time, even
consensual physical intimacy of such persons, was outlawed by Section 377
IPC – So, while the Act sought to provide an avenue for those marriages
that did not enjoy support in society, or did not have the beneﬁt of custom
to solemnise, it would be quite a stretch to say that this included same
sex marriages – Therefore, the challenge to the constitutionality of the
statute, must fail – As long as an objective is clearly discernible, it cannot
be attacked merely because it does not make a better classiﬁcation – The
original rationale for SMA was to facilitate inter-faith marriages – That
reason is as valid today as it was at the time of birthing that law – It cannot
be condemned on the ground of irrelevance, due to passage of time – The
provisions of SMA are incapable of being “reading down”, or interpreted
by “reading up” in the manner suggested by the petitioners – The general
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pattern of provisions – including the speciﬁc provisions, enabling or entitling
women, certain beneﬁts and the eﬀect of Sections 19, 20, 21 and 21A of
SMA is that even if for arguments’ sake, it were accepted that Section
4 of SMA could be read in gender neutral terms, the interplay of other
provisions- which could apply to such non-heterosexual couples in such
cases, would lead to anomalous results, rendering the SMA unworkable –
Gender neutral interpretation of existing laws would complicate an already
exhausting path to justice for women and leave room for the perpetrator to
victimise them – A law which was consciously created and fought for, by
women cannot, by an interpretive sleight be diluted. [Paras 79, 82, 85, 87,
101, 102, 149] – Held (per Pamidighantam Sri Narasimha, J.) (Also
concurring): The constitutional challenge to the Special Marriage Act, 1954
and the Foreign Marriage Act, 1969 must fail – Semantic impossibilities
of gender-neutral constructions of the Special Marriage Act, 1954 and the
Foreign Marriage Act, 1969. [Para 4] – Held (per Sanjay Kishan Kaul,
J.): If the intent of the SMA is to facilitate inter-faith marriages, then there
would be no rational nexus with the classiﬁcation it makes, i.e., excluding
non-heterosexual relationships – An objective to exclude non-heterosexual
relationships would be unconstitutional, especially after this Court in Navtej
has elaborately proscribed discrimination on the basis of sexual orientation –
Therefore, the SMA is violative of Article 14 of the Constitution – However,
there are multifarious interpretive diﬃculties in reading down the SMA to
include marriages between non-heterosexual relationships – Entitlements
devolving from marriage are spread out across a proverbial ‘spider’s web’
of legislations and regulations – Tinkering with the scope of marriage under
the SMA can have a cascading eﬀect across these disparate laws. [Para 17]
LGBTQ community / Queer persons – Discrimination and violence
against – Directions sought to obviate the same:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]:
The State shall ensure - consistent with the previous judgments in K.S.
Puttaswamy, Navtej Johar, Shakti Vahini and Shaﬁn Jahan- that the choice
exercised by queer and LGBTQ couples to cohabit is not interfered with
and they do no face any threat of violence or coercion – Respondents shall
take suitable steps to ensure that queer couples and transgender persons
are not subjected to any involuntary medical or surgical treatment – Above
directions in relation to transgender persons to be read as part of and not in
any manner whittling down the directions in NALSA so far as they apply to
transgender persons – This court is alive to the feelings of being left out,
1220 SUPREME COURT REPORTS [2023] 16 S.C.R.

experienced by the queer community;however, addressing their concerns
would require a comprehensive study of its implications involving a
multidisciplinary approach and polycentric resolution, for which the court
is not an appropriate forum to provide suitable remedies. [Para 149] – Held
(per Pamidighantam Sri Narasimha, J.): One is not oblivious to the
concerns of the LGBTQ+ partners with respect to denial of access to certain
beneﬁts and privileges that are otherwise available only to married couples
– The general statutory scheme for the ﬂow of beneﬁts gratuitous or earned;
property or compensation; leave or compassionate appointment, proceed on a
certain deﬁnitional understanding of partner, dependant, caregiver, and family
– In that deﬁnitional understanding, it is no doubt true, that certain classes
of individuals, same-sex partners, live-in relationships and non-intimate care
givers including siblings are left out – The impact of some of these deﬁnitions
is iniquitous and in some cases discriminatory – The policy considerations and
legislative frameworks underlying these deﬁnitional contexts are too diverse
to be captured and evaluated within a singular judicial proceeding – A review
of the impact of legislative framework on the ﬂow of such beneﬁts requires
a deliberative and consultative exercise, which exercise the legislature and
executive are constitutionally suited, and tasked, to undertake.[Para 19] –
Held (per Dr. Dhananjaya Y. Chandrachud, CJI): The State must enable
the LGBTQ community to exercise its rights under the Constitution – Queer
persons have the right to freedom from coercion from their natal families,
agencies of the State including the police, and other persons – Union
Government, State Governments, and Governments of Union Territories,
inter alia, were directed (i) that the queer community is not discriminated
against; (ii) that there is no discrimination in access to goods and services
to the queer community, which are available to the public; (iii) to sensitise
the public about queer identity; (iv) to establish hotline numbers for the
queer community; (v) to establish and publicise ‘safe houses’ for queer
community; (vi) to ensure that inter-sex children are not forced to undergo
operations with regard only to their sex; (vii) that no person shall be forced
to undergo hormonal therapy or sterilisation or any other medical procedure
either as a condition or prerequisite to grant legal recognition to their gender
identity – Further, directions to appropriate Government under the Mental
Healthcare Act to formulate modules covering the mental health of queer
persons in their programmes under Section 29(1) and that programmes to
reduce suicides and attempted suicides [envisaged by Section 29(2)] must
include provisions which tackle queer identity – Also, directions issued
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to the police machinery such as (i) there shall be no harassment of queer
couples by summoning them to the police station or visiting their places of
residence solely to interrogate them about their gender identity or sexual
orientation; (ii) not to force queer persons to return to their natal families and
(iii) before registering an FIR against a queer couple or one of the parties in
a queer relationship (where the FIR is sought to be registered in relation to
their relationship), they shall conduct a preliminary investigation. [Paras 339,
340] – Held (per Sanjay Kishan Kaul, J.): There is a need for a separate
anti-discrimination law which inter alia prohibits discrimination on the basis
of sexual orientation – Such a law should recognize discrimination in an
intersectional manner i.e. discrimination must be looked at as a conﬂuence of
factors – as identities and individual instances of oppression that ‘intersect’
and create a distinct form of disadvantage. [Paras 27, 28].
LIST OF CITATIONS AND OTHER REFERENCES
In the judgment of S. Ravindra Bhatt, J.
Delhi Transport Corporation v. DTC Mazdoor Congress [1990] Supp.
1 SCR 142; Cellular Operators Association of India v. Telecom Regulatory
Authority of India [2016] 9 SCR 1; Kharak Singh v. State of UP, [1964] 1
SCR 332; Bijoe Emmanuel v. State of Kerala [1986] 3 SCR 518; Union of
India (UOI) v. Naveen Jindal & Ors. [2004] 1 SCR 1038; State of Gujarat
and Another v. Shri Ambica Mills Ltd [1974] 3 SCR 760; Venugopala Ravi
Varma Rajah v. Union of India [1969] 3 SCR 827; Ajoy Kumar Banerjee &
Ors. v. Union of India & Ors. [1984] 3 SCR 252 – relied on.
All India Bank Employees Association v. National Industrial Tribunal
[1962] 3 SCR 269; Maneka Gandhi v. Union of India (UOI) & Ors. [1978]
2 SCR 621; In Re the Special Courts Bill, 1978 [1979] 2 SCR 476; Central
Bank of India v. Ravindra [2001] Supp 4 SCR 323 – followed.
Vishaka & Ors v. State of Rajasthan [1997] Supp 3 SCR 404; Common
Cause (A Regd. Society) v. Union of India (UOI) & Ors. [2018] 6 SCR 1;
National Legal Services Authority v. Union of India & Ors. [2014] 5 SCR
119; Motor and General Traders v. State of AP [1984] 1 SCR 594; Rattan
Arya v. State of T.N. [1986] 2 SCR 596; Satyawati Sharma v. Union of India
2008 (6) SCR 566; Dharani Sugars and Chemicals Ltd v. Union of India
[2019] 6 SCR 307; X v. Principal Secretary, Health and Family Welfare
Department [2022] 7 SCR 686 – distinguished.
1222 SUPREME COURT REPORTS [2023] 16 S.C.R.

Navtej Johar & Ors. v. Union of India [2018] 7 SCR 379; K.S.
Puttaswamy v. Union of India [2017] 10 SCR 569; Shaﬁn Jahan v. Asokan
K.M & Ors. [2018] 4 SCR 955;Shakti Vahini v. Union of India [2018] 3
SCR 770; Deepika Singh v. Central Administrative Tribunal [2022] 7 SCR
557 – explained.
Mohd. Ahmad Khan v. Shah Bano Begum [1985] 3 SCR 844; Danial
Latiﬁ v. Union of India [2001] Suppl. 3 SCR 419; Revanasiddappa v.
Mallikarjuna 2023 INSC 783: 2023 SCC OnLine SC 1087; Independent
Thought v. Union of India & Anr. [2017] 13 SCR 821; Shayara Bano v.
Union of India & Anr. [2017] 9 SCR 797; Laxmi Kant Pandey v. UOI [1985]
Supp. 3 SCR 71; Suchita Srivastava & Ors. v. Chandigarh Administration
[2009] 13 SCR 989; Devika Biswas v. Union of India [2016] 5 SCR 773;
Asha Ranjan v. State of Bihar [2017] 1 SCR 945; In re [Gang-Rape Ordered
by Village Kangaroo Court in W.B., (2014) 4 SCC 786: 2014] 4 SCR 264;
Indian Young Lawyers Association & Ors. v. the State of Kerala & Ors.
[2018] 9 SCR 561; Francis Coralie Mullin v. Administrator, Union Territory
of Delhi [1981] 2 SCR 516; Prem Shankar Shukla v. Delhi Admn [1980] 3
SCR 855; Jeeja Ghosh v. Union of India, [2016] 4 SCR 638; Anuj Garg v.
Hotel Association of India [2007] 12 SCR 991; Kesavananda Bharati v. State
of Kerala [1973] Supp SCR 1; State Of Gujarat and Another v. Shri Ambica
Mills Ltd [1974] 3 SCR 760; M. Nagaraj v. Union of India [2006] Supp 7
SCR 336; Rajive Raturi v. Union of India & Ors [2017] 12 SCR 827; Suresh
Kumar Koushal v. Naz Foundation (2014) 1 SCC 1: [2013] 17 SCR 1019;
Lata Singh v. State of U.P. [2006] 3 Suppl. SCR 350; Laxmibai Chandaragi
v. State of Karnataka 2021 (3) SCC 360: [2021] 1 SCR 518; Joseph Shine
v. Union of India [2018] 11 SCR 765; Sivasankaran v. Santhimeenal [2021]
6 SCR 169; Indra Sarma v. V.K.V. Sarma [2013] 14 SCR 1019; Andhra
Pradesh Public Service Commission v. Baloji Badhvanath,[2009] 5 SCR
668; State of Kerela v. N.M. Thomas, (1976) 2 SCC 310: [1976] 1 SCR
906; Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217: [1992] 2
Suppl. SCR 454; Arumugam Servai v. State of Tamil Nadu [2011] 5 SCR
488; Rustom Cavasjee Cooper v. Union of India [1970] 3 SCR 530; Sakal
Papers (P) Ltd v. Union of India [1962] 3 SCR 842; Bennet Coleman v.
Union of India [1973] 2 SCR 757; Express Newspapers (P) Ltd. v. Union
of India, [1959] 1 SCR 12; Ratilal Panachand Gandhi v. State of Bombay
[1954] 1 SCR 1055; D.S. Nakara v. Union of India [1983] 2 SCR 165; Kedar
Nath Bajoria v. State of West Bengal [1954] 1 SCR 30; Chandan Banerjee
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1223
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v. Krishna Prasad Ghosh [2021] 11 SCR 720; Transport & Dock Workers
Union v. Mumbai Port Trust [2010] 14 SCR 873; Union of India v. M.V.
Valliappan [1999] 3 SCR 1146; State of J&K v. Triloki Nath Khosa [1974]
1 SCR 771; Dharani Sugars and Chemicals Ltd v. Union of India, [2019]
6 SCR 307; Badshah v. Sou. Urmila Badshah Godse [2013] 10 SCR 259;
All Kerala Online Lottery Dealers Association v. State of Kerala & Ors.,
[2015] 10 SCR 880; State (Through CBI/New Delhi) v. S.J. Choudhary
(1996) 2 SCC 428: [1996] 2 SCR 556; Githa Hariharan v. Union of India
[1999] 1 SCR 669; SIL Import, USA v. Exim Aides Silk Exporter [1999] 2
SCR 958; BR Enterprises v. State of U.P. [1999] 2 SCR 1111; Association
of Old Settlers of Sikkim & Ors. v. Union of India [2023] 10 SCR 289;
S.R. Chaudhuri v. State of Punjab & Ors (2001) 7 SCC 126: [2001] 1
Suppl. SCR 621; Shailesh Dhairyawan v. Mohan Balkrishna Lulla [2015]
12 SCR 70; Ebix Singapore Private Limited and Ors. v. Committee of
Creditors of Educomp Solutions Ltd & Ors. [2021] 14 SCR 321; Workmen
of Dimakuchi Estate v. Management of Dimakuchi Tea Estate [1958] SCR
1156; M. Nizamuden v. Chemplast Sanmar Ltd & Ors (2010) 4 SCC 240:
[2010] 3 SCR 315; Girodhar G. Yadalam v. Commissioner of Wealth Tax &
Ors [2015] 15 SCR 543; K.H. Nazar v. Mathew K. Jacob, (2020) 14 SCC
126: [2019 ] 14 SCR 928; New India Assurance Co. Ltd. v. Nusli Neville
Wadia [2007] 13 SCR 598; Bipinchandra Parshottamdas Patel v. State of
Gujarat 2003 (4) SCC 642: [2003] 3 SCR 533; Reserve Bank of India v.
Peerless General Finance and Investment Co. Ltd. & Ors. [1987] 2 SCR
1; Bank of India v. Vijay Transport & Ors. [1988] 1 SCR 961; R.L. Arora
v. State of Uttar Pradesh [1964] 6 SCR 784; B.R. Kapur v. State of Tamil
Nadu [2001] 3 Suppl. SCR 191; AK Gopalan v. State of Madras, [1950] 1
SCR 88; Lt. Col Nitisha v. Union of India [2021] 4 SCR 633; Om Kumar
and Ors v. Union of India [2000] Supp 4 SCR 693; S.K. Nausad Rahaman
& Ors. v. Union of India (UOI) & Ors 2022 (12) SCC 1; Ravinder Kumar
Dhariwal v. Union of India 2021 (13) SCR 823; K. Bhagirathi G. Shenoy
and Ors. v. K.P. Ballakuraya & Anr. [1999] 2 SCR 438; Indira Nehru Gandhi
v. Raj Narain, (1975) Supp. SCC 1: [1976] 2 SCR 347; Port of Bombay v.
Dilipkumar Raghavendranath Nadkarni [1983] 1 SCR 828; State of A.P. v.
Challa Ramkrishna Reddy [2000] 3 SCR 644; Shabnam v. Union of India
[2015] 8 SCR 289; Aruna Ramchandra Shanbaug v. Union of India, [2011]
4 SCR 1057; Gian Kaur v. State of Punjab [1996] 3 SCR 697; Sheela Barse
v. Union of India (1993) 4 SCC 204: [1993] 1 Suppl. SCR 561; State of
1224 SUPREME COURT REPORTS [2023] 16 S.C.R.

Punjab v. Ajaib Singh [1995] 1 SCR 496; Manubhai Pragji Vashi etc. [1995]
Supp 2 SCR 733; PUCL v. UOI (W.P.© 196/2001); State of H.P. v. Umed
Ram Sharma [1986] 1 SCR 251- referred to.
Arun Kumar v. Inspector General of Registration (2019) Online SCC
Madras 8779 – approved.
Naz Foundation v. State (NCT of Delhi) (2009) 111 DRJ 1 (DB) -
referred to.
Obergefell v. Hodges 576 US 644 (2015); Loving v. Virginia, 388 US
1; Royal College of Nursing of the United Kingdom v. Department of Health
and Social Security, 1981 (1) All ER 545 [HL]; Comdel Commodities Ltd. v.
Siporex Trade S.A., 1990 (2) All ER 552 [HL]; McCartan Turkington Breen
(A Firm) v. Times Newspapers Ltd., [2000] 4 All ER 913; R v Ireland, R v
Burstow 1997 (4) All ER 225; Birmingham City Council v. Oakley [2001]
1 All ER 385 [HL]; Goodes v East Sussex County Council (2000 [3] All ER
603); Southwark London Borough Council v. Mills (1999 [4] All ER 449;
Ghaidan v Godin – Mendoza, (2004) UKHL 30; Minister of Home Aﬀairs v.
Fourie & Anr, [(CCT 60/04) [2005] ZACC 19; 2006 (1) SA 524- referred to.
Aharon Barak “Human Dignity - The Constitutional Value and the
Constitutional Right” Cambridge University Press (2015); Aharon Barak-
Purposive Interpretation in Law; Principles of Statutory Interpretation by
G.P.Singh, Lexis Nexis, First Edition (2015) – referred to.
In the judgment of P. S. Narasimha, J.
Navtej Singh Johar & Ors. v. Union of India (2018) 10 SCC 1: [2018]
7 SCR 379; NALSA v. Union of India (2014) 5 SCC 438: [2014] 5 SCR
119 - held inapplicable.
Shaﬁn Jahan v. Asokan K.M. (2018) 16 SCC 368: [2018] 4 SCR 955;
Shakti Vahini v. Union of India (2018) 7 SCC 192: [2018] 3 SCR 770 -
explained.
Indian Ex-Service Movement v. Union of India (2022) 7 SCC 323 -
referred to.
In the judgment of D.Y. Chandrachud, CJI
Powers, Privileges and Immunities of State Legislatures, In re (1965)
1 SCR 413 – followed.
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Navtej Singh Johar v. Union of India [2018] 7 SCR 379; National Legal
Services Authority v. Union of India AIR 2014 SC 1863:[2014] 5 SCR 119;
Justice KS Puttaswamy (9J) v. Union of India AIR 2017 SC 4161: [2017]
10 SCR 569; Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019)
11 SCC 1: [2018] 9 SCR 561; Lalita Kumari v. Government of U.P (2014)
2 SCC 1: [2013] 14 SCR 713; Common Cause v. Union of India (2018) 5
SCC 1: [2018] 6 SCR 1; Common Cause v. Union of India 2023 SCC OnLine
SC 99; State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC
68: [1986] 1 SCR 251; Deepika Singh v. Central Administrative Tribunal
2022 SCC OnLine SC 1088; Sheela Barse v. Union of India (1993) 4 SCC
204: [1993] 1 Suppl. SCR 561; PUCL v. Union of India (WP (Civil) No.
196/2001) – relied on.
Shabnam Hashmi v. Union of India (2014) 4 SCC 1: [2014] 2 SCR
1101 – distinguished.
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1: [2013] 17
SCR 116; Shakti Vahini v. Union of India (2018) 7 SCC 192: [2018] 3 SCR
770; Shaﬁn Jahan v. Asokan K.M. (2018) 16 SCC 368: [2018] 4 SCR 955;
Laxmibai Chandaragi B. v. State of Karnataka (2021) 3 SCC 360: [2021]
1 SCR 518; Union of India v. Naveen Jindal (2004) 2 SCC 510: [2004]
1 SCR 1038; Vishaka v. State of Rajasthan (1997) 6 SCC 241: [1997] 3
Suppl. SCR 404; D.K Basu v. Union of India (1997) 1 SCC 416: [1996] 10
Suppl. SCR 284; Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC
90: [1985] 1 SCR 303; Madhu Kishwar v. State of Bihar (1996) 5 SCC
125: [1996] 1 Suppl. SCR 442; Daryao v. State of U.P, (1962) 1 SCR 574;
State of W.B. v. Committee for Protection of Democratic Rights, (2010)
3 SCC 571: [2010] 2 SCR 979; Rai Sahib Ram Jawaya Kapur v. State of
Punjab, [1955] 2 SCR 225; Kalpana Mehta v. Union of India, (2018) 7
SCC 1: [2018] 4 SCR 1; S P Sampath Kumar v. Union of India, (1987) 1
SCC 124: [1987] 1 SCR 435; State of W.B. v. Committee for Protection
of Democratic Rights, (2010) 3 SCC 571: [2010] 2 SCR 979; Common
Cause v. Union of India, (2018) 5 SCC 1: [2018] 6 SCR 1; State of Madras
v. V.G. Row, (1952) 1 SCC 410: [1952] SCR 597; Romesh Thapar v. State
of Madras 1950 SCC 436; Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC
319: [1988] 3 SCR 706; Independent Thought v. Union of India (2017) 10
SCC 800: [2017] 13 SCR 821; Lata Singh v. State of U.P., (2006) 5 SCC
475: [2006] 3 Suppl. SCR 350; Gang-Rape Ordered by Village Kangaroo
1226 SUPREME COURT REPORTS [2023] 16 S.C.R.

Court in W.B., In re, (2014) 4 SCC 786: [2014] 4 SCR 264; Vikas Yadav v.
State of U.P., (2016) 9 SCC 541: [2016] 8 SCR 872; Shilpa Sailesh v. Varun
Sreenivasan, 2023 SCC OnLine SC 544; Shayara Bano v. Union of India
(2017) 9 SCC 1: [2017] 9 SCR 797; Indra Sarma v. VKV Sarma (2013) 15
SCC 755: [2013] 14 SCR 1019; State of Kerala v. NM Thomas, [1976] 1
SCR 906; Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3)
545: [1985] 2 Suppl. SCR 51; Hussainara Khatoon v. Home Secretary,
(1980) 1 SCC 81: [1979] 3 SCR 169; Unnikrishnan v. State of AP, (1993)
1 SCC 645: [1993] 1 SCR 594; Mohd. Hanif Qureshi v. State of AP, [1959]
SCR 629; Minerva Mills v. Union of India 1980 AIR 1789: [1981] 1 SCR
206; Indibily Creative Private limited v. Government of West Bengal (2020)
12 SCC 436: [2019] 5 SCR 679; RC Cooper v. Union of India (1970) 1
SCC 248: [1970] 3 SCR 530; Deepak Gulati v. State of Haryana, (2013) 7
SCC 675:[2013] 6 SCR 544; M. Pentiah v. Veeramallappa Muddal, [1961]
2 SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3
SCC 709: [1989] 2 SCR 544; MC Mehta v. Union of India, (2019) 17 SCC
490: [2018] 12 SCR 565; Shantistar Builders v. Narayan Khimalal Totame
(1990) 1 SCC 520; D.C Saxena v. Hon’ble Chief Justice of India, (1996)
5 SCC 216: [1996] 3 Suppl. SCR 677; Maneka Gandhi v. Union of India,
(1978) 1 SCC 248: [1978] 2 SCR 621; Pradeep Jain v. Union of India (1984)
3 SCC 654: [1984] 3 SCR 942; Common Cause v. Union of India (2018) 5
SCC 1: [2018] 6 SCR 1; Union of India v. Moolchand Kharaiti Ram Trust
(2018) 8 SCC 321: [2018] 7 SCR 939; Madhu Kishwar v. State of Bihar
(1996) 5 SCC 125: [1996] 1 Suppl. SCR 442; Ashoka Kumar Thakur v.
Union of India, (2008) 6 SCC 1: [2008] 4 SCR 1; Indian Medical Assn. v.
Union of India, (2011) 7 SCC 179: [2011] 6 SCR 599; Indra Sawhney v.
Union of India 1992 Supp (3) SCC 217: [1992] 2 Suppl. SCR 454; Akshay
N Patel v. Reserve Bank of India Civil Appeal No. 6522 of 2021; Modern
Dental College & Research Centre v. State of Madhya Pradesh, (2016) 4
SCC 346: [2016] 3 SCR 575; Andi Mukta Sadguru Shree Muktajee Vandas
Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2
SCC 691: [1989] 2 SCR 697; Praga Tools Corpn. v. C.A. Imanual (1969) 1
SCC 585: [1969] 3 SCR 773; Kanailal Sur v. Paramnidhi Sadhu Khan AIR
1957 SC 907; J K Industries Limited v. Union of India (2007) 13 SCC 673:
[2007] 12 SCR 136; Indian Express Newspapers (Bombay) P Ltd. v. Union
of India, (1985) 1 SCC 641: [1985] 2 SCR 287; Gaurav Jain v. Union of
India (1997) 8 SCC 114: [1997] 2 Suppl. SCR 105; Karan v. State of M.P.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1227
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(2023) 5 SCC 504; Barun Chandra Thakur v. Bholu, 2022 SCC OnLine
SC 870; Shilpa Mittal v. State (NCT of Delhi) (2020) 2 SCC 787: [2020] 2
SCR 478; Anwar Ali Sarkar v. State of West Bengal [1952] SCR 284; Lt.
Col. Nitisha v. Union of India 2021 SCC OnLine SC 261; State of Kerala
v. NM Thomas (1976) SCC 2 310:[1976] 1 SCR 906; Gita Hariharan v.
Reserve Bank of India (1999) 2 SCC 228: [1999] 1 SCR 669; State Bank
of Travancore v. Mohammed Khan (1981) 4 SCC 82: [1982] 1 SCR 338;
Indra Das v. State of Assam, (2011) 3 SCC 380: [2011] 4 SCR 289; Union
of India v. Association of Democratic Reforms (2002) 5 SCC 294: [2002] 3
SCR 696; SC Advocates-on-Record Association v. Union of India (1993) 4
SCC 441: [1993] 2 Suppl. SCR 659; State of Punjab v. Ajaib Singh (1995)
2 SCC 486: [1995] 1 SCR 496; MC Mehta v. Union of India (2004) 6 SCC
588: [2004] 2 Suppl. SCR 504; Noise Pollution (I), in re (2005) 5 SCC 727;
State of Maharashtra v. Manubhai Pragji Vashi (1995) 5 SCC 730: [1995]
2 Suppl. SCR 733 – referred to.
Mansur Rahman v. Superintendent of Police 2018 SCC OnLine Mad
3250; Sushma v. Commissioner of Police, W.P. No. 7248 of 2021, (Madras
High Court); Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori
602 – approved.
Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206; Queen
Empress v. Khairati, ILR (1884) 6 All 204; Naz Foundation v. Government of
NCTD (2009) 160 DLT 277; Arunkumar v. Inspector General of Registration,
AIR 2019 Mad 265; Latha v. Commissioner of 2021 SCC OnLine Mad 7495;
Veera Yadav v. The Chief Secretary, Government of Bihar, CW No. 5627 of
2020; Patna High Court, and Vithal Manik Khatri v. Sagar Sanjay Kamble,
Crl. W.P. No. 4037 of 2021 Bombay High Court; National Coalition for Gay
and Lesbian Equality v. Minister of Home Aﬀairs [2000] 4 LRC 292; D P
Minwalla v. Emperor, AIR 1935 Sind. 78; Mary Sonia Zachariah v. Union
of India 1995 SCC OnLine Ker 288 – referred to.
Ghaidan v. Godin-Mendoza [2004] UKHL 30; Griswold v. Connecticut
381 US 479 (1965); Minister of Home Aﬀairs v. Fourie (2006) 1 SA 524;
Obergefell v. Hodges, Director, Department of Health 576 US 644 (2015);
Sodomy Case, 1999 (1) SA 6 (CC), Home Aﬀairs case, 2000 (2) SA 1 (CC);
Du Troit, 2003 (2) SA 198 (CC); Satchwell, 2002 (6) SA 1 (CC); Day-Brite
Lighting Inc. v. Missouri 342 US 421 (1952); Lochner v. New York 198 US
45 (1905); Marbury v. Madison 5 US 137 (1803); Goodridge v. Department
1228 SUPREME COURT REPORTS [2023] 16 S.C.R.

of Public Health 798 N.E.2d 941 (Mass. 20003); Skinner v. Oklahoma, 316
U.S 535; Zablocki v. Redhail, 434 U.S 374; Loving v. Virginia, 388 US 1;
Saﬂey, 482 U.S. 78, 95(1987); Roberts v. United States Jaycees, 468 U.S
609 (1984); Lawrence v. Texas, 539 U.S 558 (2003) – referred to.
Maya Sharma, Loving Women: Being Lesbian in Underprivileged
India (2nd edn, Yoda Press 2021); e-Committee Supreme Court of India,
Sensitisation Module for the Judiciary on LGBTQIA+ community; Shreya
Raman, ‘Denied Visibility in Oﬃcial Data, Millions of Transgender Indians
Cant Access Beneﬁts’ (India Spend, 11 June 2021); Shakthi Shalini, “The
Unspoken: A qualitative research on natal family violence” 23; Lakshya
Arora, ‘PM Bhujang, Muthusamy Sivakami, Understanding discrimination
against LGBTQIA+ patients in hospitals using human rights perspective:
an exploratory qualitative study’ Sex Reprod Health Matters’ 2022 29(2)
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9423841/; Sejal Singh
and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT
people’s lifes in both subtle and signiﬁcant ways’ (American Progress, 2
May 2017); Bindisha Sarang, ‘Why its doubly diﬃcult for gay renters to
ﬁnd homes’, (First Post, November 13, 2013) https://www.ﬁrstpost.com/
living/why-its-doubly-diﬃcult-for-gay-renters-to-ﬁnd-homes-1224225.
html; International Commission of Jurists, Unnatural Oﬀences: Obstacles
to Justice in India Based on Sexual Orientation and Gender Identity (ICJ,
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each other’ (India Today, 1 January 2019); Deccan Herald ‘Two girls from
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2015); Paul Boyce and Rohit K Dasgupta, ‘Utopia or Elsewhere: Queer
Modernities in Small Town West Bengal’ in Tereza Kuldova and Mathew
A Varghese (eds.), Urban Utopias (Palgrave Macmillan, 2017); AIDS
Bhedbhav Virodhi Andolan, ‘Less Than Gay’ (1991); Agaja Puthan
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1230 SUPREME COURT REPORTS [2023] 16 S.C.R.

Vol. 38(2) 566; Tammy R Pettinato, “Transforming Marriage: The
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1979); Ralph Linton, The Study of Man: An introduction (1936); Irving
S. Falodare, A Clariﬁcation of “Ascribed Status” and “Achieved Status”,
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Rights of Transgender People in India’, in Zoya Hasan, and others (eds),
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and the US (Delhi, 2018; online edn., OUP 2019); D Paul Sullins, Child
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W.Allen, High School graduation rates among children of same sex
households, Rev Econ Household (2013) 11:635-658; Henry M.W Bos
& Frank Van Balen, Children in planned lesbian families: Stigmatisation,
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10:3, 221-236; Solirios Sarantakos, Children in three contexts: Family,
education, and social development, Children Australia Volume 21, No. 3,
1996; American Psychological Association, ‘Lesbian and Gay Parenting;
Biasutti, CM; Nascimento CRR, Gato J, Bortolozzo ML, Same-sex
parenting in Brazil and Portugal: An integrative review. Research, Society
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Kristof De Witte, Soﬁe Cabus, School outcomes of children raised by
same-sex parents: Evidence from administrative Panel Data, American
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Navtej Singh Johar & Ors. vs. Union of India, Through Secretary,
Ministry of Law & Justice [2018] 7 SCR 379 – relied on.
D.S. Nakara v. Union of India, [1983] 2 SCR 165; Deepak Sibal v.
Punjab University, (1989) 2 SCC 145: [1989] 1 SCR 689; Central Inland
Water Transport Corpn. v Brojo Nath Ganguly, (1986) 3 SCC 156: [1986]
2 SCR 278 – referred to.
Maqbool Fida Husain v. Rajkumar Pandey, 2008 Cri LJ 4107 – referred
to.
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Germany] and Du Plessis v. De Klerk 1996 (3) SA 850 – referred to.
Ruth Vanita and Saleem Kidwai, Same-sex love in India: Readings
from Literature & History (Palgrave, 2001), pp. 15 and 68; Devdutt Pattnaik,
The Man who was a Woman & Other Queer Tales (Routledge, 2002); Manjari
Shrivastava, Lesbianism in Nineteenth Century Erotic Urdu Poetry “Rekhti”,
Proceedings of the Indian History Congress, 68, 965; Stephanie Coontz,
Marriage, a History: How Love Conquered Marriage (Penguin, 2005), p.
3-5; William N. Eskridge, Public Values in Statutory Interpretation, 137(4)
UPenn Law Rev. 1007, 1009; Shreya Atrey, Intersectional discrimination
(Oxford University Press, 2019), p. 41; Tarunabh Khaitan, A Theory of
Discrimination Law (Oxford University Press, 2015), p. 212-213; Nan.
D. Hunter, ‘Marriage, Law and Gender: A Feminist Inquiry’ in Sex Wars:
Sexual Dissent and Political Culture (Lisa Duggan and Nan. D. Hunter
eds, Routledge, 2006) p. 109 – 110; William Eskridge, Equality Practice:
Civil Unions and the Future of Gay Rights, (Routledge, 2002) p. 322;
Abbie E. Goldberg et al, The Division of Labor in Lesbian, Gay, and
Heterosexual New Adoptive Parents, 74(4) Journal of Marriage and Family,
p. 812; Charlotte J. Patterson et al, Division of Labor Among Lesbian and
Heterosexual Parenting Couples: Correlates of Specialized Versus Shared
Patterns, 11 Journal of Adult Development, p. 179; Rosemary Auchmuty,
When Equality is not Equity: Homosexual Inclusion in Undue Inﬂuence
Law, 11 Feminist Legal Studies, 163, 183 – referred to.
1232 SUPREME COURT REPORTS [2023] 16 S.C.R.

OTHER CASE DETAILS INCLUDING IMPUGNED
ORDER AND APPEARANCES

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No.1011
of 2022
(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)
With
W.P.(c) No.93 of 2023, T.C. (C) Nos.5, 8, 9, 11, 12 of 2023, W.P. (C)
Nos.1020, 1105, 1141, 1142, 1150 of 2022, W.P. (C) Nos. 159, 129, 260 of
2023, T.C. (C) No.6 of 2023, W.P. (C) No.319 of 2023, T.C. (C) Nos.7, 10,
13 of 2023 and W.P. (C) No.478 of 2023.
Appearances:
R Venkataramani, AG, Tushar Mehta, SG, K M Nataraj, Ms.
Aishwarya Bhati, A.S.Gs., Saurabh Mishra, Bharat Singh, A.A.Gs., Ankita
Choudhary, D.A.G., Mukul Rohatgi, Dr. Menaka Guruswamy, Saurabh
Kirpal, Raju Ramchandran, K V Viswanathan, Ms. Geeta Luthra, Anand
Grover, Dr. Abhishek Manu Singhvi, Ms. Jayna Kothari, Maninder Singh,
Mrs. Manisha Lavkumar Rakesh Dwivedi, Kapil Sibal, Arvind P. Datar,
Atmaram N S Nadkarni, Mahabir Singh, Navin Pahwa, Jaideep Gupta,
V. Giri, Ranjit Kumar, Harshvir Pratap Sharma, Manan Kumar Mishra, S.
Prabakaran, R. Balasubramanian, Sr. Advs., Ms. Arundhati Katju, Govind
Manoharan, Ms. Shristi Bortkahur, Dhanurdhar Rana, Ms. Ritika Meena,
Utkarsh Pratap, Ms. Diksha Tiwari, Lavkesh Bhambhani, Ms. Apurva
Singh, Anchit Singla, Sharad Kumar Puri, Ms. Tanvi Nigam, Mrs. Priya
Puri, Ms. Tahira Karanjawala, Ms. Niharika Karanjawala, Ms. Sanya Dua,
Shreyas Maheshwari, Raghav Kacker, Abhishek Grover, Ms. Ranjeeta
Rohtagi, Keshav Sehgal, Nikhil Arora, Cyrus Jal, Ms. Kalyani Bhide, M/s.
Karanjawala & Co., Ms. Amritananda Chakravorty, Ms. Anindita Pujari,
Mihir Samson, Ms. Sherya Munoth, Ms. Sitamsni Cherukumlli, Ms. Aswathi
Menon, Ms. Sitamsini Cherukumalli, Mukunda Mamidipudi, Ms. Asawari
Sodhi, Abhineet Arvind, Maitreya Saha, Ms. Radhika Mohapatra, Ms. Bhabna
Das, Ms. Arundhati Katju, Sai Kaushal, Ms. Tara Narula, Ms. Shivani Luthra
Lohiya, Ms. Aparajita Sinha, Nitin Saluja, Ms. Tamanna Pankaj, Ms. Asmita
Narula, Ms. Shivangi Sharma, Ms. Apoorva Maheshwari, Ms. Sonal Chopra,
Manas Agrawal, Dhanurdhar Singh Rana, Rahul Sangwan, Karthik Sundar,
M.G. Aravind Raj, Sivagnanam Karthikeyan, Siddharth Sridhar, Navjot
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1233
UNION OF INDIA

Singh, Ms. Shally Bhasin, Chaitanya Safaya, Anand Amit, Ms. Varshini
Sudhinder, A. Selvin Raja, Manu Srinath, M P Srivignesh, Lakshman Raja
T., Mithun Kumaar N., Ms. Karuna Nundy, Rahul Narayan, Ms. Muskan
Tibrewala, Amanpreet Singh, Nitish Chaudhary, Ms. Ramya Soni, Ms.
Nupur Kumar, Paras Nath Singh, Rohin Bhatt, Ms. Neeha Nagpal, Malak
Manish Bhatt, Himanshu Suman, Dhanurdhar Singh Rana, Shadan Farasat,
Amit Bhandari, Aman Sharma, Gautam Bhatia, Utkarsh Saxena, Abhinav
Shekhri, Shourya Dasgupta, Aman Naqvi, Ms. Hrishika Jain, Ms. Natasha
Maheshwari, Ms. Mreganka Kukreja, Abhishkar Singhvi, Kumar Dushyant
Singh, Rohit Sharma, Ms. Aparna Mehrotra, Raghav Gupta, Nikhil Purohit,
Ashok Kumar, Raghav Awasthi, Namit Saxena, Awnish Maithani, Shivam
Raghuwanshi, Ms. Ruchira Goel, Ms. Vrinda Grover, Aakarsh Kamra, Suraj
Sanap, Aavishkar Singh, Shivam Singh, Ms. Mugdha Pande, Dhruva Gandhi,
Harpreet Singh Gupta, Shiva Sharma, Ms. Shivika Sharma, Ms. Shaswati
Parhi, Ms. Serena Jethmalani, Kailas Bajirao Autade, Shaurya Sahay, Kanu
Agrawal, Udai Khanna, Ms. Ruchi Gour Narula, Madhav Sinhal, Arkaj
Kumar, Padmesh Mishra, Chitvan Singhal, Abhishek Kumar Pandey, Raman
Yadav, Arvind Kumar Sharma, Ms. Swati Ghildiyal, Ms. Devyani Bhatt,
Ankit Yadav, Ms. Aishwarya Gupta, Sunny Choudhary, Ms. Sansriti Pathak,
Yashraj Singh Bundela, Abhimanyu Singh, Sandeep Sharma, Karan Bishnoi,
M. R. Shamshad, Arijit Sarkar, Ms. Nabeela Jamil, Ms. Aparajita Jamwal,
Ms. Sumedha Ray Sarkar, Ms. Manisha Singh, Ms. Rupali Samuel, Rishabh
Parikh, Niaz A Farooqui, Aman Jha, Ms. Ruchi Kohli, Rahul Unnikrishnan,
Ankit Anandraj Shah, Gaurav Prakash Shah, Ms. Srishti Mishra, Rishi Tutu,
Ms. M. Jannani, R. C. Kohli, Mrs. Swarupama Chaturvedi, Ms. Saumya
Kapoor, Ms. Katyayani Anand, Anuj Saluja, Anubhav Dubey, Prabhas Bajaj,
Navneet R, Ajay Sabharwal, Rangasaran Mohan, Ms. Megha Sharma, Ms.
Akanksha Gupta, Ashish Singh, Shoumendu Mukherji, Atulesh Kumar, S
Santosh Rebello, Ms. Manisha Agarwal Narain, J Sai Deepak, V Shyamohan,
Ms. Shaktiki Sharma, Avinash Sharma, Abhishek Avadhani, Ms. Anshika
Bajpai, Akshat Gogna, Pranav Krishna for M/s. Kmnp Law, Ms. Priya
Aristotle, Dr. Joseph Aristotle S, George Varghese, Ms. Sheela Washington,
Ms. Manisha Agrawal Narain, Surya Kant, Ms. Priyanka Tyagi, Amit Kr.
Singh, Varun Maheshwari, Manan Soni, Dr. Sasmit Patra, Joby P. Varghese,
Upmanyu Sharma, Abhinav Shrivastava, Shivang Rawat, Ms. Radhika Jalan,
Ms. Sanjivani Aggarwal, Pradeep Shekhawat, Ms. Jyoti Aggarwal, Ms. Filza
Moonis, Prashanth R Dixit, Shekhar G Devasa, Ms. Thashmitha Muthanna,
1234 SUPREME COURT REPORTS [2023] 16 S.C.R.

Manish Tiwari, Niroop Sukirthy, Prajwal Hallur, M/s. Devasa & Co.,
Group Captain Karan Singh Bhati, Ms. Archana Pathak Dave, Ms. Apurva
Mahntiyan, Kumar Prashant, Parmod Kumar Vishnoi, P. V. Yogeswaran,
Ashish Kumar Upadhyay, Y. Lokesh, Anirudh Sharma, V. Kandha Prabhu,
Ms. Maitri Goal, Anubhav Chaturvedi, N. B. V. Srinivasa Reddy, Akshat
Srivastava, Gourave Kumar Agarwal, Dr. AP Singh, VP Singh, Mrs. Richa
Singh, Mrs. Geeta Chauhan, Sadashiv, Dhawal Uniyal, Kumar Kartikay,
Sudhakar Kulwant, Sahitya Srivastava, Ms. Anmol Sharma, Ms. Anurag
Rana, Pushpinder Singh, Siddharth Dharmadhikari, Aaditya Aniruddha
Pande, Bharat Bagla, Ms. Shreya Saxena, Ms. Yamini Singh, Sourav Singh,
Hamza Lakdawala, Ms. Racheeta Chawla, Ms. Manicka Priya S, Supratik
Sarkar, Mukund P. Unny, Kaleeswaram Raj, Ms. Thulasi K Raj, Mohammed
Sadique T.A., Pulkit Srivastava, Somanadri Goud Katam, Abhilash. M.R.,
Sayooj Mohandas. M, Sandeep Singh, Abhay Anil Anturkar, Sarthak
Mehrotra, Dhruv Tank, Ms. Surbhi Kapoor, Gaichangpou Gangmei, Santosh
Kumar, Praneet Pranav, Amit Sharma, Vikash Chandra Shukla, Alabhya
Dhamija, Aishvary Vikra, Abhinav Gupta, Nitesh Ranjan, Ms. Sindoora
VNL, Ms. Aditi Tripathi, Prabhsimar Singh, Ms. Manju Jetley, Siddhartha
Sinha, Prashant Rawat, Ms. Priya Mishra, Nring Chamwibo Zeliang, Ms.
Anu Priya Nisha Minz, Tathagat Sharma, Ms. Marbiang Khongwir, Shivam
Singhania, Ms. Chubalemla Chang, Nitansh Jaiswal, Abhishek Singh, Aditya
Mishra, Prang Newmai, S. Rajurkar, Ms. Charu Mathur, Ms. Meera Kaura,
Tejas Patel, Saket, Ms. Muskaan Gandhi, Abhinav Chandan, Pawan Aneja,
Akshay, Ms. Anindita Mitra, Mohd. Zahid Hussain, Ms. Anjul Dwivedi, Dr.
Ram Sankar, Sai Gridhar, Vishwajeet Mishra, Krishna Pandey, T S. Nanda
Kumar, Anand Kumar V, Aditya Kishor Tyagi, Ms. RV Shaarumathi, Jai
Singh G, Ms. Sunatha Bagadhi for M/s. Ram Sankar & Co Alex Joseph,
Ejaz Maqbool, Ms. Tanvi Dubey, Anukrit Gupta, Sanpreet Singh, Sanjay
Kumar Dubey, Sumit Chatterjee, Yash, Ms. Anushree Malviya, Ms. Shrestha
Narayan, Milind Kumar, Suhaan Mukerji, Abhishek Manchanda, Ms. Nisha
Tomar, Gautam Bhatia, Sayandeep Pahari, Tanmay Sinha, Shashank Shekhar
Jha, Advs. for the appearing parties.
By Courts Motion,
Intervenor-in-person
Som Thomas, in-person
Ms. Tanushree Bhalla, In-person
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1235
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT
DR. DHANANJAYA Y CHANDRACHUD, CJI
Table of Contents*
A. Background ...............................................................................8
i. The decision of this Court in Navtej Singh Johar ...... 8
ii. Societal violence against the queer community.........11
B. Submissions .......................................................................... 18
C. Reliefs sought in the proceedingsw .................................... 64
D. Analysis ................................................................................. 68
i. This Court is vested with the authority to hear this
case ............................................................................... 68
a. Article 32 vests this Court with the power to enforce
the rights in Part III of the Constitution ............... 68
b. Judicial review and separation of powers ............ 72
c. The power of this Court to enforce rights under Article
32 is diﬀerent from the power of the legislature to
enact laws ............................................................. 74
d. The power of judicial review must be construed in
terms of the Constitution of India and not in terms of
the position of law in other jurisdictions.............. 76
e. The role of courts in the democratic process ....... 78
ii. Is queerness ‘un-Indian’? Who is an Indian? What
practices are Indian? .................................................. 81
a. Queerness is a natural phenomenon which is known
to India since ancient times .................................. 81
b. Queerness is not urban or elite ............................. 83

* Ed Note: Pagination is as per the original judgement.
1236 SUPREME COURT REPORTS [2023] 16 S.C.R.

c. The rise of Victorian morality in colonial India and the
reasons for the re-assertion of the queer identity.... 91
d. Who is an Indian and what practices are Indian?. 95
iii. Understanding the institution of marriage ............... 95
a. There is no universal conception of marriage............... 95
b. The conception of marriage is not static ..................... 100
I Sati ..................................................................... 101
II. Widow remarriage .............................................. 101
III. Child marriage and the age of consent ............... 102
IV. Other violence in marriage ................................. 103
V. Inter-caste and interfaith marriage ..................... 104
VI. Divorce ............................................................... 107
VII. The implications of the discussion in this segment...108
c. The implications of this discussion for the right of queer
persons to marry ..........................................................110
iv. The significance of marriage as a socio-legal
institution ....................................................................111
v. The nature of fundamental rights: positive and negative
postulates ................................................................... 122
vi. Approaches to identifying unenumerated rights ... 126
vii. The scope of the State’s regulation of the ‘intimate
zone’............................................................................ 128
viii. The right to marry .................................................... 133
a. Have the courts recognised the right to marry? .......... 133
b. There is no fundamental right to marry ...................... 136
c. The challenge to the SMA .......................................... 140
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1237
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

I. The scheme of the SMA..................................... 140
II. The decision of the South African Constitutional Court
in Fourie ............................................................. 143
III. The decision of the UK House of Lords in
Ghaidan .............................................................. 147
IV. Institutional limitations with respect to the
interpretation of SMA ........................................ 150
d. The challenge to the FMA .......................................... 155
ix. The right to enter into a union ......................................... 157
a. The goal of self-development and what it means to be
human ......................................................................... 157
b. The rights under Article 19 ......................................... 161
I The right to freedom of speech and expression and to
form intimate associations ................................. 161
II. The right to settle in any part of India................ 165
c. Facets of the right to life and liberty under
Article 21 .................................................................... 167
I. The atypical family ............................................ 167
II. The right to dignity, autonomy, and privacy ...... 170
III. The right to health .............................................. 172
d. The right to freedom of conscience under Article 25 .... 174
x. Restrictions on the right to enter into a union ................ 179
a. The right to enter into a union cannot be restricted based
on sexual orientation ................................................... 179
b. Recognizing the right of queer persons to enter into a union
will not lead to social chaos ........................................ 183
1238 SUPREME COURT REPORTS [2023] 16 S.C.R.

xi. The right of transgender persons to marry ..................... 184
a. Sex, gender, sexual orientation ................................... 185
b. The judgment of this Court in NALSA and the Transgender
Persons Act ................................................................. 186
c. Transgender persons in heterosexual relationships can
marry under existing law ............................................ 191
I. The right against discrimination under the Transgender
Persons Act......................................................... 191
II. Remedies for the infringement of Section 3 ...... 194
III. Harmonious interpretation of the laws governing
marriage and the Transgender Persons Act ........ 197
xii. The conditions for the exercise of the rights of LGBTQ
persons ................................................................................ 200
a. The right of queer persons under the Mental Healthcare
Act............................................................................... 200
b. The right of LGBTQ persons to freedom from coercion from
their families, the agencies of the state, and other persons
202
xiii. The right of queer persons to adopt children.................. 204
a. Challenge to the Adoption Regulations ...................... 204
I. Regulation 5(3) of the Adoption Regulations exceeds
the scope of the JJ Act ........................................ 208
II. Regulation 5(3) of the Adoption Regulations violates
Article 14 of the Constitution..............................211
III. Regulation 5(3) of the Adoption Regulations violates
Article 15 of the Constitution............................. 215
b. Challenge to the CARA Circular ................................ 224
E. Response to the opinion of Justice Ravindra Bhat ......... 227
F. Directions to obviate discrimination ................................ 239
G. Conclusions and orders of enforcement .......................... 242
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1239
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

1. The Transfer Petitions in these proceedings are allowed.
2. The terms ‘LBGTQ’ and ‘queer’ are used interchangeably and as
umbrella expressions to capture the various sexual orientations and gender
identities that exist.
3. The term ‘union between queer persons’ or similar terms have been
used to mean relationship between parties where one or both of them have
an atypical gender identity or sexual orientation.
A*. Background
i. The decision of this Court in Navtej Singh Johar
4. Section 377 of the Indian Penal Code 18601 criminalizes “carnal
intercourse against the order of nature.” History is replete with instances of
the State having used the provision to rip-oﬀ the dignity and autonomy of
individuals who engaged in sexual activity with persons of the same sex.2
A colonial provision which reﬂected Victorian morality continued in the
statute after Independence. Section 377 was also weaponized against gender
non-conforming persons.3 Intimate relationships and activities were subject
to public ridicule and judicial scrutiny. By criminalizing sexual behavior of
homosexual and gender non-conforming persons, the State stripped them
of their identity and personhood. Those who deﬁed the mandate of the law
and dodged prosecution were socially ostracized.
5. In Naz Foundation v. Government of NCTD4, a Division Bench
of the High Court of Delhi read down Section 377 of the IPC to exclude
consensual homosexual sexual activity between adults. On appeal, a two-
Judge Bench of this Court in Suresh Kumar Koushal v. Naz Foundation5
reversed the judgment of the High Court of Delhi. A writ petition seeking
to declare the right to sexuality, the right to sexual autonomy, and the
right to choice of a sexual partner as a part of the rights guaranteed under

* Ed. Note: PART A
1 “IPC”
2 Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206
3 Queen Empress v. Khairati, ILR (1884) 6 All 204
4 (2009) 160 DLT 277
5 (2014) 1 SCC 1
1240 SUPREME COURT REPORTS [2023] 16 S.C.R.

Article 21 of the Constitution and to declare Section 377 of the IPC to be
unconstitutional was listed before a three-Judge Bench of this Court. The
petitioners argued that the matter must be referred to a ﬁve-Judge Bench in
view of the decisions of this Court in National Legal Services Authority
v. Union of India6 and Justice KS Puttaswamy (9J) v. Union of India.7
In NALSA (supra), this Court held that the state must recognize persons
who fall outside the male-female binary as ‘third gender persons’ and that
they are entitled to all constitutionally guaranteed rights. It also directed
the Union and State Governments to grant legal recognition to the self-
identiﬁed gender of transgender persons, including when they identify as
male and female. In Justice KS Puttaswamy (9J) (supra), this Court held
that the Constitution protects the right of a person to exercise their sexual
orientation. The three-Judge Bench referred the judgment of this Court in
Suresh Kumar Koushal (supra) to a larger Bench. The three-Judge Bench
also observed that the “order of nature” referred to in Section 377 of the IPC
is not a constant but is guided by social morality as opposed to constitutional
values, and that a section of the population should not remain in a constant
state of fear while exercising their choices.
6. This Court answered the reference in Navtej Singh Johar v. Union
of India8, holding that Section 377 is unconstitutional to the extent that it
criminalizes consensual sexual activities by the LGBTQ community. It held
that: (i) Section 377 violated Article 14 because it discriminated between
heterosexual persons and non-heterosexual persons, although both groups
engage in consensual sexual activities 9; (ii) While Article 14 permits
reasonable classiﬁcation based on intelligible diﬀerentia, a classiﬁcation
based on an ‘intrinsic and core trait’ is not reasonable; Section 377 classiﬁed
individuals on the basis of the core trait of ‘sexual orientation’10; (ii) Article
15 prohibits discrimination based on ‘sex’ which includes within its meaning
sexual orientation as well11 and Section 377 indirectly discriminated between

6 AIR 2014 SC 1863
7 AIR 2017 SC 4161
8 2018 1 SCC 791
9 Chief Justice Dipak Misra in Navtej Singh Johar
10 Justice Indu Malhotra in Navtej (supra)
11 Justice DY Chandrachud in Navtej (supra)
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heterosexual persons and the LGBTQ community based on their sexual
orientation; and (iii) Section 377 violated Article 19(1)(a) because Section
377 inhibited sexual privacy.12
7. One of us (DY Chandrachud, J.) observed that the right to sexual
privacy also captures the right of the LGBTQIA+ community to navigate
public places free from State interference. The community does not face
discrimination merely based on their private ‘sexual’ activities. It extends to
their identity, expression, and existence. The Court declared that the members
of the LGBTQIA+ community are entitled to the full range of constitutional
rights including the right to choose whom to partner with, the ability to ﬁnd
fulﬁlment in sexual intimacies, the beneﬁt of equal citizenship, and the right
not to be subject to discriminatory behaviour. This Court in Navtej (supra)
went beyond decriminalizing the sexual oﬀence. It recognized that persons
ﬁnd love and companionship in persons of the same gender; protected the
class against discriminatory behavior; and recognized the duty of the State
to end the discrimination faced by the queer community.
ii. Societal violence against the queer community
8. Despite the de-criminalization of queer relationships and the broad
sweep of the decision in Navtej, members of the queer community still face
violence and oppression, contempt, and ridicule in various forms, subtle
and not so subtle, every single day. The State (which has the responsibility
to identify and end the various forms of discrimination faced by the
queer community) has done little to emancipate the community from the
shackles of oppression. The ghost of Section 377 lives on in spite of the
decriminalization of the sexual oﬀence and the recognition of the rights of
queer persons in Navtej (supra).
9. The law, in the form of Section 377, imposed social morality on
homosexual relationships. The legal regime was the chariot which propels
social norms on love and unions. The impact of Section 377 on society
must be viewed in terms of its eﬀect on the social conceptions of love and
companionship. Section 377 enforced morality through law by shaping
beliefs about queer identity. This far-reaching impact of the legal regime is

12 Chief Justice Dipak Misra and Justice DY Chandrachud in Navtej (supra)
1242 SUPREME COURT REPORTS [2023] 16 S.C.R.

one of the primary reasons for the continuing, widespread revulsion against
the LGBTQIA+ community even after homosexual sexual acts have been
decriminalized. The lack of sensitization and the ensuing discrimination
has pushed the members of the community into the proverbial closet. For
many members of the LGBTQIA+ community, expressing their sexual
orientation and gender identity is an act of deﬁance which requires strength
and courage. The ostracism extends across the full range of social values,
from parenting to public oﬃce.
10. The discrimination faced by the LGBTQIA+ community in various
forms is, in so many ways, a product of social morality as much as it is a
product of the lack of eﬀort from the State to sensitize the general public
about issues concerning queer rights. Social norms and beliefs which were
internalised over centuries were not overhauled at the stroke of midnight
when the nation became the source of its destiny and when the Constitution
was adopted in 1950. Similarly, the stigma against the members of the
LGBTQIA+ community did not end with a stroke of the pen when this
Court decriminalized consensual homosexual sexual activity.
11. Despite this Court recognizing that sexual orientation is a core
and innate trait of an individual, the members of the queer community
continue to face economic, social and political oppression in both visible
and invisible ways. At a primary level, they face oppression because of their
inability to express their gender identity due to the fear of public disapproval.
Researchers have recorded incidents where the public has subjected members
of the queer community to violence for publicly displaying aﬀection towards
one another. A woman who eloped with another woman was beaten, stripped
and paraded around the village within a blackened face and a garland of
shoes around her neck.13 Queer individuals who are from socio-economically
marginalised backgrounds are at an even greater risk of being subject to
harassment.
12. The LGBTQIA+ community also faces discrimination in the public
space because of the lack of accommodation in the public sphere for persons
who do not conform to the gender binary. All the services provided by the

13 Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn,
Yoda Press 2021)
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State including public washrooms, security check points, and ticket counters
at railway stations and bus depots are segregated based on a strict gender
binary. Transwomen have recounted experiences of being asked to shift to
the men’s queue in security check points.14 Although they are women and
identify with the female gender, they are forced to accept a third party’s
assessment of their gender as being male. Just as a cisgender woman may
feel intensely uncomfortable at using facilities meant for men, transgender
women too may feel very uncomfortable. Over time, misgendering a person
can have deleterious eﬀects on their mental health and negatively impact
their ability to function in the world.
13. Places of education and employment are also not spaces where
gender identity and sexual orientation may be expressed devoid of
discriminatory attitudes. The members of the queer community may be forced
to quit their education or their job if they face oppression in these spaces.
This would mean that they do not have equal opportunity. In professional
environments, members of the queer community may face various forms of
discrimination which may range from being denied opportunities to secure
jobs to not being invited to oﬃce gatherings and to being passed over for
promotions. A human rights organization interviewed 3,619 transgender
persons out of which only 12% were employed, with half of them earning
less than Rs. 5,000 per month.15 Contrary to popular perception, the
signiﬁcant percentage of unemployment in the transgender community is
not because transgender persons do not wish to work or because they prefer
to beg, but because employers are unwilling to employ them due to their
gender nonconformity. In another study conducted by the National Human
Rights Commission (NHRC) it was revealed that seventy-ﬁve percent of
transgender persons in the National Capital Region and eighty-two percent
of transgender persons in Uttar Pradesh never attended school or dropped
out before tenth grade. Further, members of the transgender community
face diﬃculty in obtaining proper identiﬁcation documents which prevents
them from accessing even those opportunities which are available to them.

14 Also see: e-Committee Supreme Court of India, Sensitisation Module for the Judiciary
on LGBTQIA+ community
15 Shreya Raman, ‘Denied Visibility in Oﬃcial Data, Millions of Transgender Indians
Cant Access Beneﬁts’ (India Spend, 11 June 2021)
1244 SUPREME COURT REPORTS [2023] 16 S.C.R.

14. The biological family is often the ﬁrst site of violence and
oppression for the queer community. It begins with family members
rejecting the gender identities of their transgender children or consenting
to “gender normalizing surgeries” for their intersex children (that is,
those who have reproductive or sexual anatomy that does not ﬁt into an
exclusive male or female sex classiﬁcation) without giving the child an
opportunity to choose for themselves16. At a very young age, they face
familial rejection. Instead of being nurtured with love and aﬀection,
they face contempt because of their identity which in turn makes them
vulnerable and inexpressive. The natal families of some homosexual
persons force them to marry a person of the opposite sex once they come
to know about their sexual orientation.17 A woman also recounted that
she was wary of communicating the truth about her sexual orientation to
her family because she was worried that they would stop her from going
to school.18 Another woman recounted that after she disclosed her sexual
orientation to her family, her movements were constantly monitored and
even if she went away from home for an hour, her phone would be traced
with the assistance of the Station House Oﬃcer.19 Families also consider
a queer person’s desire of gender expression to be a mental illness which
requires cure. A person from the queer community recounted being forced
to undergo ‘conversion therapy’ where they were given electroconvulsive
shocks.20 Another queer person recounts the harrowing experience that
they underwent at a rehabilitation centre:
“It was only later that I realised that I had been shifted to another
rehabilitation centre [...]. Here, I was undressed and checked by a
female warden. Afterward, I went to sleep for the night.
There was one bathroom in this rehabilitation centre, which everyone
used together. There was no door, and there was no question of privacy.
I have never been to jail in my life, but I’ve heard that it’s better than
this.”

16 Also see Arunkumar v. Inspector General of Registration, AIR 2019 Mad 265
17 Shakthi Shalini, “The Unspoken: A qualitative research on natal family violence” 23
18 Ibid.
19 ibid
20 Ibid,110.
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15. The transgender community is also discriminated against
in other ways. The members of the community are not treated in a
digniﬁed manner in the healthcare sector for reasons which range from
administrative formalities which are not gender-inclusive to a lack of
knowledge about gender-related diseases.21 Similarly, the community
also faces discrimination in the housing sector. Studies have shown that
it is very diﬃcult for members of the queer community to rent a house. 22
Some members of the queer community recounted that they have shifted
houses twice in four years because of neighbours who assumed that they
had parties and caused disturbances.23
16. Often, instruments of the State which are tasked with protecting
human rights, perpetuate violence. Police and prison oﬃcials exhibit
violence towards the queer community. Research conducted by the
National Institute of Epidemiology involving around 60,000 transgender
participants revealed that the law enforcement agencies are the largest
perpetrators of violence against the transgender community.24 A trans-
woman lodged in a prison housing two thousand male inmates recounted
the violence that she faced during her imprisonment. She reported that the
male prisoners sexually assaulted and mentally harassed her. 25 Lesbian and
gay couples often approach the police for protection from family violence.
However, instead of granting protection to the couple, the police ‘hand

21 Lakshya Arora, ‘PM Bhujang, Muthusamy Sivakami, Understanding discrimination
against LGBTQIA+ patients in hospitals using human rights perspective: an
exploratory qualitative study’ Sex Reprod Health Matters’ 2022 29(2) https://www.
ncbi.nlm.nih.gov/pmc/articles/PMC9423841/.
22 Sejal Singh and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT
people’s lifes in both subtle and signiﬁcant ways’ (American Progress , 2 May 2017)
https://www.americanprogress.org/article/widespread-discrimination-continues-
shape-lgbt-peoples-lives-subtle-signiﬁcant-ways/
23 Bindisha Sarang, ‘Why its doubly diﬃcult for gay renters to ﬁnd homes’ , (First Post,
November 13, 2013) https://www.ﬁrstpost.com/living/why-its-doubly-diﬃcult-for-gay-
renters-to-ﬁnd-homes-1224225.html
24 International Commission of Jurists, Unnatural Oﬀences: Obstacles to Justice in India
Based on Sexual Orientation and Gender Identity (ICJ, 2017)
25 Sukanya Shantha, ‘Misgendering, sexual violence, and harassment: What it is like to
be a transgender person in an Indian prison’ (The wire, 11 Feb 2021) https://thewire.
in/lgbtqia/transgender-prisoners-india
1246 SUPREME COURT REPORTS [2023] 16 S.C.R.

over’ the couple to their families.26 In one such case, the police colluded
with the family despite court orders granting protection to a couple from the
queer community. The parents of a cis-woman (who was in a relationship
with a trans man) ﬁled a missing persons case, The couple already had
already ﬁled an aﬃdavit in court that they were in a live-in relationship.
However, the police ‘tracked them down’.27 In some instances, the family’s
complaint is not recorded by the police. Instead, they try to force persons
of the queer community to speak to their family.28 The violence and the
discrimination that the queer community is subjected to leads to them
being closeted or feeling compelled to imitate the expressive attitudes of
heterosexual persons.29
17. This Court in NALSA (supra) declared that the transgender
community must not be subsumed within the gender binary and must be
treated as a “third gender” in the eyes of the law. This Court also directed
the Central and the State governments to take steps to address the stigma and
oppression faced by the community and create public awareness about the
community and their struggles. Parliament enacted the Transgender Persons
(Protection of Rights) Act 201930 to protect the rights of the transgender
community and provide welfare measures for their betterment. The enactment
aims to protect the transgender community from discrimination and includes
provisions for providing them with opportunities in the educational and
social sectors. However, in spite of the decision of this Court in NALSA
(supra) and the provisions of the Transgender Persons Act, members of the
transgender community continue to be denied equal citizenship. They face
immense physical and sexual violence. They are often forced to undergo
sex-reassignment surgeries before their rights as transgender persons are
recognized, and are frequently subjected to hate speech. Stereotypes about
the community are also reinforced in the media.

26 Centering Familial Violence in the Lives of Queer and Trans Persons in the Marriage
Equality Debates, A report on the ﬁndings from a closed door public hearing on April
1, 2023 organised by PUCL and National Network of LBI Women and Transpersons.
27 ibid
28 ibid
29 Sejal Singh and Laura E. Durso (n 22)
30 “Transgender Persons Act”
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18. The grievance of the petitioners (who are members of the
LGBTQIA+ community) is not that society discriminates against them in an
informal (and invisible) manner. That is a secondary but an equally important
stage of how discrimination pans out against a marginalised class. The
petitioners claim that they are discriminated on a more formal (and visible)
level. The petitioners contend that the State through the operation of the
current legal regime discriminates against the queer community by impliedly
excluding the queer community from a civic institution: marriage. The
petitioners have invoked the equality code of the Constitution to seek legal
recognition of their relationship with their partner in the form of marriage.
The petitioners do not seek exclusive beneﬁts for the queer community,
which are unavailable to heterosexuals. They claim that the State ought to
treat them on par with the heterosexual community.
B*. Submissions
19. Learned counsel appearing for the petitioners made the submissions
detailed below. Since this Court is a court of record, the submissions of each
of the counsel are set out.
20. Mr. Mukul Rohatgi, learned senior counsel, made the following
submissions:
a. This Court’s existing jurisprudence on LGBTQIA+ rights
declares that LGBTQIA+ persons are entitled to dignity,
equality, and privacy, which encompasses the fundamental
right of LGBTQIA+ persons to marry a person of their choice.
Accordingly, statutory recognition of such fundamental rights
of LGBTQIA+ persons is merely a consequence of this Court’s
jurisprudence31;
b. Articles 19 and 21 of the Constitution guarantee all persons the
right to marry a person of their choice, including LGBTQIA+
persons;

* Ed. Note: PART B
31 Reliance was placed on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
[9-Judge Bench], Navtej Singh Johar v. Union of India (2018) 10 SCC 1, National
Legal Services Authority v. Union of India (2014) 5 SCC 438, and Deepika Singh
v. Central Administrative Tribunal 2022 SCC OnLine SC 1088
1248 SUPREME COURT REPORTS [2023] 16 S.C.R.

c. The Special Marriage Act (SMA) violates the right to dignity
and decisional autonomy of LGBTQIA+ persons and therefore
violates Article 2132;
d. Excluding LGBTQIA+ persons from the SMA discriminates
against them on the basis of their sexual orientation and the sex
of their partner. This violates Article 15 of the Constitution;
e. The SMA is violative of Article 14 of the Constitution because:
i. It denies LGBTQIA+ persons equal protection of the laws.
Non-recognition of same-sex and gender-non conforming
marriage causes prejudice to LGBTQIA+ persons and
denies them rights under social welfare and beneﬁcial
legislations;
ii. It is manifestly arbitrary to exclude LGBTQIA+ persons
from the SMA. There is no fair or reasonable justiﬁcation
to exclude LGBTQIA+ couples from the institution of
marriage;
iii. There is no constitutionally valid, intelligible diﬀerentia
between LGBTQIA+ and non-LGBTQIA+ persons. The
classiﬁcation in the present case is based only on the
sexual orientation and gender identity of the parties to a
marriage, which is constitutionally impermissible. Further,
there is no rational nexus with the object sought to be
achieved by the SMA. The object of the SMA is to provide
a civil form of marriage for couples who cannot or choose
not to marry under their personal law. The exclusion of
LGBTQ couples from the SMA has no rational nexus with
this object;
f. There is no ‘legitimate state interest’ promoted or safeguarded by
denying LGBTQ+ individuals the fundamental right of marriage;
g. Recognizing the right of LGBTQIA+ couples to marry upholds
constitutional morality. Constitutional morality urges the organs
of the state, including the judiciary, to preserve the heterogeneous

32 Reliance was placed on Shakti Vahini v. Union of India (2018) 7 SCC 192
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nature of our society and encourage it to be pluralistic and
inclusive;
h. Every person is entitled to marry someone of their choice. Queer
people are equally entitled to the exercise of this right33.;
i. Denying LGBTQ+ individuals the right to marry inﬂicts personal
harm on them and also inﬂicts a signiﬁcant economic cost on the
country;
j. Denial of the right to marry amounts to a deprivation of the
entitlement to full citizenship as well as a denial of the right to
intimacy;
k. The Constitution is a living document and ought to adapt to
changing social realities. Notions of marriage equality are not
necessarily opposed to social morality.;
l. If a statute appears to violate the Constitution, then this Court
may either declare it unconstitutional, or read it expansively to
save its constitutionality. Matrimonial as well as other statutes
can be read in a gender-neutral manner to include LGBTQIA+
couples within their ambit;
m. There is growing international consensus (including judicial
consensus) which recognizes same-sex and gender non-
conforming marriages, and this is in line with India’s international
obligations;
n. Article 32 of the Constitution vests in persons or citizens a
fundamental right to approach this Court for the enforcement of
the rights guaranteed in Part III of the Constitution. It is therefore
incorrect to argue that queer people must wait for Parliament to
enact a law granting marriage equality;
o. Consequential reliefs must necessarily follow a declaration
that the right to marry is vested equally in all persons including
LGBTQIA+ persons;

33 Reliance was placed on Shaﬁn Jahan v. Asokan K.M. (2018) 16 SCC 368, Shakti
Vahini (supra), Laxmibai Chandaragi B. v. State of Karnataka (2021) 3 SCC 360,
Deepika Singh (supra)
1250 SUPREME COURT REPORTS [2023] 16 S.C.R.

p. The SMA ought to be read in a gender-neutral manner. Gendered
terms such as “husband” and “wife” ought to be read as “spouse.”
The language used in the SMA facilitates a gender neutral
interpretation. Section 4 of the SMA is with reference to “any
two persons,” Section 4(1)(a) refers to a “spouse” and Section
4(1)(b) refers to a “party”;
q. The age that must be attained before a person is eligible to marry
under the SMA ought to be twenty-one years for all persons; and
r. Transgender persons may fall into the categories of either “man”
or “woman” in the SMA, depending on the gender they identify
with.
21. Dr. Abhishek Manu Singhvi, learned senior counsel, made the
following submissions:
a. The SMA is unconstitutional because it discriminates on
the grounds of sexual orientation by preventing same-sex
couples from solemnizing their marriages. Article 15(1) of the
Constitution prohibits discrimination on the grounds of sex,
which subsumes sexual orientation. The requirement in the
SMA that a couple should consist of a man and a woman is one
which is based on ascriptive characteristics (attributes that are
pre-determined or designated by society or other external norms)
and is an exclusion based on a marker of identity;
b. Marriage is not simply a beneﬁt or privilege. Rather, it forms
the very basis of a couple’s ability to fully participate in society.
Marriage is a source of social validation, dignity, self-respect,
fulﬁlment, security (ﬁnancial and otherwise), and other legal
and civil beneﬁts including in the domain of tax, inheritance,
adoption, etc.;
c. The exclusion of same-sex couples from the SMA is violative
of Article 14 of the Constitution. While there is an intelligible
diﬀerentia for the classiﬁcation in that the sexual orientation of
heterosexual and homosexual persons is diﬀerent, there is no
rational nexus with any legitimate state purpose. A legislative
purpose cannot itself be discriminatory or unconstitutional;
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d. The exclusion of same-sex couples from the SMA is violative
of Article 19 of the Constitution. The act of entering into a
marital relationship is protected under Article 19(1)(a) of the
Constitution, and is a socially valuable form of expression.
The restriction on the right of queer persons to marry is not a
reasonable restriction under Article 19(2)34;
e. The exclusion of same-sex couples from the SMA is violative
of their right to dignity and is therefore violative of Article 21
of the Constitution. The exclusion of same-sex couples from the
institution of marriage is being used to send a public message
about their worth as unequal moral members of society and is
inter alia akin to caste-based restrictions on temple entry and the
refusal to accommodate disability in public examinations;
f. The SMA authorizes the solemnisation of same-sex marriages,
when interpreted consistent with the Constitution. It can be read
down in the following manner to include the solemnization of
marriages between non-heterosexual persons:
i. The word “man” in Section 2(b) includes “any person”,
and that correspondingly, the word “woman” includes “any
person”;
ii. The words “man” and “woman” include trans-men and
trans- women, intersex and non-binary individuals as the
case may be35;
iii. Section 4(c) enacts only an age-based exclusion for persons
otherwise eligible to marry under the provisions of Section
4, and shall not be construed to impose any disabilities
based on gender, sexual orientation, or sexual identity of
the parties. For same sex couples in particular, Section
4(c) can be read as a single age-restriction, be it eighteen
or twenty-one. In the alternative, Section 4(c) may be
read as prescribing the minimum age as eighteen for both

34 Reliance was placed on Union of India v. Naveen Jindal (2004) 2 SCC 510
35 Reliance was placed on National Legal Services Authority (supra)
1252 SUPREME COURT REPORTS [2023] 16 S.C.R.

parties in the case of a lesbian relationship and twenty-
one for both parties in the case of a gay relationship. For
non-binary and inter-sex persons, the SMA may be read as
imposing no restriction beyond that imposed by other laws
which stipulate the age at which persons become capable
of binding themselves under law i.e., eighteen years. In
the alternative, this Court may lay down guidelines as an
interim measure while leaving it open to Parliament to ﬁll
the vacuum in due course of time;
iv. The reference to “widow” and “widower” in Schedules II
and III must be read as “widow or widower” and “widower
or widow,” as the case may be, and shall not be construed to
impose any disabilities based on gender, sexual orientation,
or sexual identity of the parties;
v. References to “bride” and “bridegroom” in Schedules III
and IV must be read as “bride or bridegroom”, as the case
may be, and shall not be construed to impose any disabilities
based on gender, sexual orientation, or sexual identity of
the parties.
g. The Foreign Marriage Act 1969 can similarly be read down;
h. The relief sought by the petitioners is workable;
i. In reading down the SMA and the FMA to achieve a
constitutionally compliant interpretation, neither the text of the
statute nor the intention of Parliament act as a limitation. Only the
underlying thrust of the legislation and the institutional capacity
of this Court are relevant. The underlying thrust of the SMA
is that it was designed to facilitate marriages lying outside the
pale of social acceptability. Reliance was placed on Ghaidan v.
Godin-Mendoza [2004] UKHL 30;
j. In the alternative, the principle of updating construction ought to
be applied to the SMA. Courts may expand the existing words of
a statute to further the march of social norms and contemporary
realities;
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k. Some laws (such as the Protection of Women Against Domestic
Violence Act 2005, the Dowry Prohibition Act 1961, provisions
pertaining to cruelty in the Indian Penal Code 186036) were
enacted to address structural imbalances of power between men
and women in a heteronormative setting. These provisions of law
do not impact whether same-sex couples have a right to marry.
These provisions are beyond the scope of the petitions and need
not be interpreted in favour of either spouse in a non-heterosexual
marriage;
l. There is no timeless and immutable conception of marriage.
The SMA itself was enacted contrary to the cultural and social
understanding of marriage which prevailed at the time. Further,
the SMA is a secular and areligious law which was meant to
serve as an alternative for those who could not or did not want
to solemnize their marriages under the applicable personal law,
which is rooted in religion. The conditions for the solemnization
of a marriage under the SMA need not, therefore, conform to the
cultural, social, or religious understandings of marriage;
m. The principles of equality and non-discrimination cannot be
trumped by societal values. These principles, by deﬁnition,
require a challenge to majoritarian social norms;
n. This Court is not being asked to act as a substitute for the
legislature or to alter the “concept of marriage.” Rather, this Court
is being asked to ﬁnd that the exclusion of a group of people
from the SMA solely by virtue of their ascriptive characteristics
is unconstitutional. A constitutionally compliant reading of the
SMA to allow for marriage equality is within the bounds of
legitimate statutory interpretation and is not judicial legislation;
and
o. Civil unions are not an equal alternative to the legal and social
institution of marriage. Relegating non-heterosexual relationships
to civil unions would send the queer community a clear message

36 “IPC”
1254 SUPREME COURT REPORTS [2023] 16 S.C.R.

of subordination – that their relationships are inferior to
relationships that comply with the entrenched heteronormative
social order.
22. Mr. Raju Ramachandran, learned senior counsel, made the
following submissions:
a. The petitioners have a fundamental right to marry a person of
one’s own choice under Articles 14, 15, 19, 21 and 25 of the
Constitution, and any exclusion or discrimination, as incorporated
in Section 4(c) and other provisions of the SMA, is ultra-vires
the Constitution. The denial of their right to marry violates
Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right
to happiness, which includes a fulﬁlling union with a person of
one’s choice;
b. The exclusion of the petitioners from the institution of civil
marriage under SMA, 1954, is inconsistent with the very object
of the law, i.e., to facilitate any marriage between two Indians,
irrespective of caste, creed or religion;
c. The systemic nature of natal family violence against LGBTQIA+
persons, owing to their sexual or gender identity, and the misuse
of the criminal law machinery by the families, often in collusion
with local police, makes it imperative for this Court to frame
guidelines concerning the police action in dealing with cases of
adult and consenting queer and transgender persons37.
d. The special provisions for a wife in a heterosexual marriage
under the SMA need not be interpreted by this Court while
deciding this batch of petitions because they are protective
provisions for women in pursuance of the constitutional
mandate in Article 15(3). Similarly, gender-specific laws
including penal laws need not be subject to any interpretative
exercise. Religious personal laws are also not required to be
interfered with;

37 Reliance was placed on Shakti Vahini (supra)
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1255
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

e. Declarations by the court as to rights of people are followed
by legislation. For instance, the rights declared in National
Legal Services Authority (supra) were given eﬀect to in the
Transgender Persons Act;
f. The doctrine of reading-in is well-recognised in Indian
jurisprudence; and
g. The Union of India has sought to argue that only Parliament can
grant a new ‘socio-legal status of marriage’ to LGBTQ persons,
after undertaking extensive consultations and eliciting views from
every part of the nation. The rights of the LGBTQIA+ community
cannot be made contingent on the opinion of the majority.
23. Mr. K V Vishwanathan, learned senior counsel, submitted that:
a. Under Article 21 of the Constitution, all persons have a
fundamental right to choose a partner;
b. International covenants to which India is a signatory including the
Universal Declaration of Human Rights38 and the International
Covenant on Economic, Social and Cultural Rights39 enjoin a
duty upon the state to not interfere with the right of a person to
marry and have a family in terms of their own choice as well as
to protect the familial rights of all persons without discrimination
on the basis of inter alia sexuality, race, and religion;
c. Statutes regulating marriage in India must be read as inclusive of
all gender identities and sexualities in view of the pronouncements
of this Hon’ble Court in National Legal Services Authority
(supra) and Navtej (supra). Such a reading is necessary to ensure
that these statutes pass muster on the touchstone of Part III of
the Constitution;
d. Courts across the country as well as state policies and welfare
schemes have recognised and accorded equal status to unions
between LGBTQ persons. A necessary corollary of the right to

38 “UDHR”
39 “ICESCR”
1256 SUPREME COURT REPORTS [2023] 16 S.C.R.

self-identify gender is to be able to express personal preference
in terms of choice of partner, and, therefore a marriage entered
into by a transgender person must be fully recognised by the
State40;
e. This Court has previously issued guidelines to protect citizens
against discrimination in cases where there existed a lacuna in
the law41.;
f. The freedom to choose a partner in marriage would be covered
under Article 19(1)(a) as an expression, under Article 19(1)(c)
as an association or union and Article 19(1)(e), as an exercise of
the right to reside and settle in any part of the territory of India42;
g. Excluding transgender persons from matrimonial statutes fails
the reasonable classiﬁcation test under Article 14;
h. Transgender persons have a right against discrimination under
Articles 15 and 16;
i. The right of transgender persons to marry is enjoined by the
Transgender Persons Act. The classiﬁcation sought to be made
by the Union of India between “biological” and transgender
persons is untenable;
j. Procreation is not the sole purpose of marriage. Marriage is not
merely the meeting and mating of two individuals but much
more - it is the union of two souls;
k. If the contention of the Union of India that ‘male’ and ‘female’
as provided in statutes are to be construed to refer to cisgender

40 Reliance was placed on Arunkumar v. Inspector General of Registration AIR
2019 Mad 265, Sushma v. Commissioner of Police, W.P. No. 7248 of 2021, Madras
High Court, Mansur Rahman v. Superintendent of Police 2018 SCC OnLine Mad
3250, Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori 602, Latha v.
Commissioner of 2021 SCC OnLine Mad 7495, Veera Yadav v. The Chief Secretary,
Government of Bihar, CW No. 5627 of 2020, Patna High Court, and Vithal Manik
Khatri v. Sagar Sanjay Kamble, Crl. W.P. No. 4037 of 2021, Bombay High Court
41 Reliance was placed on Vishaka v. State of Rajasthan (1997) 6 SCC 241, D.K Basu
v. Union of India (1997) 1 SCC 416
42 Reference was made to Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1257
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

males and females, it would lead to absurd and unjust outcomes
in implementation of several laws. For instance, the Hindu
Succession Act 195643 deﬁnes an ‘heir’ as any person ‘male or
female’ entitled to succeed to the property of an intestate under
said Act. If the Union of India’s argument is taken to be correct,
it would lead to a situation where a transgender heir of a person
who has died intestate would not be able to inherit the property,
even if they happen to be the sole heir;
l. The National Commission for Protection of Child Rights
(NCPCR) has made unscientiﬁc claims on the eﬀect of puberty
blocker / sex-transition therapy on children. They are in complete
disregard to the internationally accepted guidelines issued by
World Profession Association for Transgender Health,44 which
are also referenced in the Transgender Persons Act; and
m. The petitioners’ constitutional rights cannot be denied based
on an argument that it would oﬀend the “will of the people.”
Constitutional morality cannot and ought not to be replaced by
social morality.
24. Ms. Geetha Luthra, learned senior counsel, made the following
submissions:
a. The FMA is applicable to a couple if at least one of them is an
Indian citizen. The FMA travels with the citizen to a foreign
jurisdiction to extend its protection by recognizing the citizen’s
marriage contracted under foreign law, or by allowing a citizen
to solemnize their marriage under Indian law even when they
are abroad. In terms of Section 17 of the FMA, a marriage must
be valid in terms of foreign law and consistent with international
law;
b. All citizens including LGBTQIA+ citizens are entitled to all
rights available to Indian citizens, even if they are abroad.
Articles 19 and 21 of the Constitution guarantee all persons the

43 “Hindu Succession Act”
44 “WPATH”
1258 SUPREME COURT REPORTS [2023] 16 S.C.R.

right to marry a person of their choice, including LGBTQIA+
citizens. The FMA violates the right to dignity and decisional
autonomy of LGBTQIA+ persons and is discriminatory.
Reliance was placed on National Coalition for Gay and
Lesbian Equality v. Minister of Home Aﬀairs [2000] 4 LRC
292;
c. The object of the FMA in adopting the scheme of the SMA is to
provide a uniform, civil and secular marriage law for a couple,
either of whom is an Indian citizen. However, by recognizing
marriages only between opposite sex couples, the eﬀect of the
law is to deny same-sex and gender non-conforming couples
the right to marry a person of their choice, solely on grounds of
their sexual orientation and gender identity. This is violative of
Article 15 of the Constitution;
d. The SMA and the FMA are violative of Article 14 of the
Constitution because they deny LGBTQIA+ persons the
equal protection of laws, are manifestly arbitrary, and fail the
rational nexus test. There is no intelligible diﬀerentia between
LGBTQIA+ and non-LGBTQIA+ couples. The object of the
FMA is to extend the protection of the Indian Constitution and its
laws to a citizen abroad regardless of who they choose to marry
and under whichever law they choose to do so, to provide for
maximum international validity of a marriage, and in adopting
the framework of the SMA, to provide for a uniform, civil and
secular law to govern foreign marriages. The exclusion of same-
sex and gender non-conforming couples from the FMA has no
rational nexus with these objects;
e. The FMA is pari materia to the SMA. They must be interpreted
similarly with regard to same-sex and gender non-conforming
marriages;
f. Recognition of marriage of same-sex and gender non-conforming
couples under the FMA furthers the comity of nations; and
g. The grant of reliefs does not render the provisions of the FMA
or other statutes employing gendered terminology unworkable.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1259
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

25. Mr. Anand Grover, learned senior counsel, made the following
submissions:
a. Marriage remains fundamental to the functioning of the society,
and to avail important schemes under the modern nation - state,
such as joint tax beneﬁts and rights of surrogacy;
b. The FMA must be interpreted liberally to advance the cause of
society at large. It must not be interpreted to cause hardship;
c. The failure of the SMA to recognize same-sex marriages
violates Articles 14 and 15 of the Constitution because it fails
the reasonable classiﬁcation test, is manifestly arbitrary, and
discriminates based on gender identity and sexual orientation;
d. The failure of the SMA to recognize same-sex marriages violates
Article 19(1)(a) of the Constitution because sexuality, gender
expression, and marriage are forms of expression;
e. The right to intimate associations is protected by Article 19(1)
(c) of the Constitution. Reliance was placed on Griswold v.
Connecticut 381 US 479 (1965);
f. Same-sex marriages or gender non-conforming marriages form
a part of Indian tradition and culture. Reliance was placed on
National Legal Services Authority (supra);
g. Queerness or homosexuality is not an urban, elite conception
or expression. Numerous queer or homosexual couples from
villages and towns in India have expressed their sexuality, chosen
their partner, and entered into the institution of marriage; and
h. There is no traditional bar on marriage between non-heterosexual
persons. Excerpts from various scriptures support this proposition.
26. Ms. Jayna Kothari, learned senior counsel, made the following
submissions:
a. The SMA ought to be read to include the words “spouse” and
“person” so as to include transgender persons within its ambit.
Failure to do so amounts to a violation of the right of transgender
persons to equality and to equal protection of the laws under
Article 14 of the Constitution;
1260 SUPREME COURT REPORTS [2023] 16 S.C.R.

b. The SMA discriminates on the basis of sex, gender identity,
and sexual orientation, thereby violating Article 15 of the
Constitution;
c. The denial of the right to marry to persons based on their gender
identity is a denial of the right to dignity, personal autonomy,
and liberty under Article 21 of the Constitution;
d. Inter-sex persons have the same rights as all other persons in
India, including the right to marry; and
e. The right to a family is available under Article 21, and this right
includes the right to marry. The SMA is violative of the right of
transgender persons to have a family. Reliance was placed on
Oliari v. Italy Applications nos. 18766/11 and 36030/11.
27. Dr Menaka Guruswamy, learned senior counsel, made the
following submissions:
a. The Indian Parliament is a creature of the Constitution and
does not enjoy unfettered sovereignty. The supremacy of the
Constitution is protected by this Court by interpreting laws in
consonance with constitutional values;
b. This Court’s power of judicial review over legislative action is
part of the basic structure of the Constitution;
c. Constitutional courts are empowered to review statutory law to
ensure its conformity with constitutional values. The courts do not
need to wait for the legislature to enact/amend law to recognize
same-sex marriage;
d. The provisions of SMA, insofar as they do not recognize same-
sex marriages, are unconstitutional as being violative of Articles
14, 15, 19, 21 and 25 of the Constitution. Hence, to save it from
the vice of unconstitutionality, the SMA must be read up to
recognise same-sex marriages;
e. Recognition of same-sex marriages under the SMA is consistent
with the evolving conception of the institution of marriage;
f. Same-sex marriage is a time honoured tradition in the Indian
society;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1261
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

g. The gendered references in the SMA are capable of being read
to recognize same-sex marriages;
h. The State has no legitimate interest in restricting the institution
of marriage to heterosexual couples alone; and
i. The codiﬁcation of Hindu personal laws commenced in 1941
with the colonial Government appointing the Hindu Law
Committee, which prepared the ﬁrst draft of the Hindu Code
Bill. There was vociferous opposition to the Hindu Code Bill,
which was later enacted into four distinct legislations - the Hindu
Marriage Act 1955,45 the Hindu Succession Act, 1956, the Hindu
Minority and Guardianship Act 1956, and the Hindu Adoptions
and Maintenance Act 1956. Inter-caste marriages, sagotra
marriages, the prescription of monogamy, and the introduction
of divorce were met with great opposition. Despite vehement
opposition, these reforms have stood the test of time and society
has prospered overall as a result. Today, the objections raised on
behalf of the Union of India opposing the recognition of same-
sex marriage are akin to the opposition to the Hindu Code Bill.
28. Mr. Saurabh Kirpal, learned senior counsel, submitted that:
a. Depriving LGBTQ+ individuals of the right to marry violates
Articles 14, 15, 19(1)(a) and 21 of the Constitution;
b. The right to marry a person of one’s choice is itself a Fundamental
Right under the Constitution;
c. The SMA is unconstitutional if it is interpreted to exclude access
to LGBTQ individuals from its ambit;
d. The intent of Parliament when it enacted the SMA is not relevant.
The doctrine of reading in does not aim to discover the intention
of Parliament. The jurisprudential basis of the doctrine is that
courts read something in to save a statute from the vice of
unconstitutionality;

45 “HMA”
1262 SUPREME COURT REPORTS [2023] 16 S.C.R.

e. Having found a right to marry, this Court cannot hold that there
is no remedy or a real possibility for the exercise of that right;
and
f. By virtue of Article 13, the Constitution trumps a statute which
violates the Constitution. Analysis under Article 13 does not
extend to whether or not a statute or a system of law is workable
after it is read up or after certain words or phrases are read in to
save it from being unconstitutional. It cannot be that a complex
statute can defeat a fundamental right by virtue of its complexity.
29. Ms. Vrinda Grover, learned senior counsel, made the following
submissions:
a. Interference, opposition and violence from natal families,
irrespective of marital status, violates the fundamental right to
life and personal Liberty under Article 21 of the Constitution;
b. Non-recognition of ‘atypical families’ or ‘chosen families’
beyond constraints of marriage, blood or adoption violates
Articles 14, 15, 19 and 21;
c. Non-recognition of marriage between two consenting adults on
the basis of gender identity or sexual orientation under the SMA
violates Articles 14, 15, 19 and 21;
d. Constitutional courts sometimes accord undue deference to the
natal family. This ignores the coercion and violence that queer
and transgender persons face within their homes. Reference
was made to Devu G v. State of Kerala, SLP (Criminal) No.
5027/2023, Order dated 6 February 2023;
e. This Court ought to issue directions to all state governments to
instruct police oﬃcers to compulsorily follow the mandate of
Sections 41 and 41-A of the Code of Criminal Procedure 197346
when responding to complaints involving queer and transgender
adults who voluntarily leave natal homes;

46 “CrPC”
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OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

f. Issues of ‘workability’ in statutory provisions do not preclude this
Court from protecting rights under Part III of the Constitution.
30. Ms. Karuna Nundy, learned counsel, submitted that:
a. A spouse of foreign origin of an Indian Citizen or Overseas
Citizen of India47 cardholder is entitled to apply for registration
as an OCI under Section 7A(1)(d) of the Citizenship Act 1955.48
Section 7A(1)(d) is gender, sex and sexuality neutral, as distinct
from the FMA and SMA. The absence of any conditions qua
gender/ sex/sexuality of the parties is a casus omissus in the
statute. This Court cannot supply a casus omissus into a statute by
judicial interpretation, except in circumstances of clear necessity;
b. The recognition of a foreign marriage between two non-citizens
is a mere ministerial Act. Only the substantive law of the foreign
jurisdiction is relevant;
c. It would be manifestly arbitrary and contrary to Article 14, for
the law to accord a larger ambit for registration of marriages
to an OCI than to a citizen of the country married in a foreign
jurisdiction, and to the extent of the inconsistency a harmonious
construction of the FMA with the Citizenship Act is required;
d. A denial of the right to marry for queer persons is violative of
Articles 14, 15, 19, and 21 of the Constitution; and
e. Rule 5 of the Transgender Persons (Protection of Rights) Rules
2020 recognises marriage of transgender persons because Form
2 contains the word “spouse”.
31. Ms. Anitha Shenoy, learned senior counsel, submitted that:
a. The petitioners have a fundamental right to marry a person
of one’s own choice under Articles 14, 15, 19, 21 and 25 of
the Constitution, and any exclusion or discrimination from
solemnization or registration, as incorporated in Section 4(c)

47 “OCI”
48 “Citizenship Act”
1264 SUPREME COURT REPORTS [2023] 16 S.C.R.

and 17(2) and other provisions of the FMA is ultra-vires the
Constitution;
b. The denial of recognition of the petitioners’ marriage is
inconsistent with the very object of the FMA not to invalidate
marriages duly solemnized under foreign law by Indian citizens;
c. The requirement of proof of a ‘marital relationship’ by a ‘married
couple’ for the purpose of joint adoption under Regulations 5(2)
(a) and 5(3) is beyond the remit of Section 57 of the JJ Act that
extends joint adoption to relationships that are ‘marriage like’
including marriages between same-sex couples solemnized
overseas;
d. Regulations 5(2)(a) and 5(3) of the Adoption Regulations 202249
are ultra vires the Juvenile Justice (Care and Protection of
Children) Act 2015.50 They also violate
i. The principle of equality and non-discrimination on the
basis of sexual orientation under Articles 14 and 15;
ii. The right to adoption and motherhood protected under
Article 21; and
iii. The right of a child to be adopted recognised under the
Hague Convention on Protection of Children and Co-
operation in respect of Inter-country Adoption 1980 and
the Convention on the Rights of Children 1989.
32. Ms. Arundhati Katju, learned counsel, made the following
submissions:
a. Article 21 protects the right to found a family and the right to a
meaningful family life for all persons including LGBTQ persons.
The law deﬁnes “family” and “household” broadly and is not
limited to a “biological” man and woman and their children.
Surrogacy and adoption are available only to married couples,
thus, denying LGBTQ couples the right to found a family;

49 “Adoption Regulations”
50 “JJ Act”
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1265
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

b. A child’s right to a meaningful family life under Article 21, and its
best interest, is protected by recognizing its parents’ relationship
through marriage;
c. Denying LGBTQ couples the right to marry violates Article 14
qua them and their children;
d. The SMA should be read expansively to save it from the vice
of unconstitutionality and in the alternative, it should be struck
down;
e. Any interpretative diﬃculties which arise because of the exercise
of reading-in must be decided on a case-by-case basis by the
courts before which such issues arise; and
f. A declaration of the rights of queer people by this Court will
not preclude any debates or discussions about queerness either
in Parliament or in society.
33. Ms. Amritananda Chakravorty, learned counsel, made the following
submissions:
a. The Oﬃce Memorandum issued by CARA on 16 June 202251
is unconstitutional because they prevent same-sex couples and
gender non-conforming couples from availing of joint adoption;
and
b. The requirements prescribed in the CARA Circular travel beyond
the remit of the JJ Act. Section 2(49) of the JJ Act deﬁnes the
term “prospective adoptive parents” to mean “a person or persons
eligible to adopt a child as per the provisions of section 57.”
Section 2(49) does not require the prospective adoptive parents
to be heterosexual. Further, Section 57 does not specify marital
status as a relevant factor to be considered while determining the
eligibility of prospective adoptive parents.
34. Mr. Raghav Awasthi, learned counsel, sought to make submissions
regarding the Hindu Marriage Act. This Court declined to hear arguments
on this issue in the present proceedings.

51 CARAICA013/1/2022Administration; “CARA Circular”
1266 SUPREME COURT REPORTS [2023] 16 S.C.R.

35. Mr. Shivam Singh, learned counsel, made the following
submissions:
a. It is unconstitutional for the state to discriminate against persons
because of their innate characteristics;
b. Upholding the heterosexual notion of marriage as the only
constitutionally and legally sanctioned notion of marriage will
serve to perpetuate gender-based stereotypes proscribed by the
Constitution and is therefore violative of Article 15; and
c. Resorting to the provisions of the General Clauses Act 1897,
Section 4(c) of the SMA (which otherwise appears to be
unconstitutional) can be read down such that the singular “male”
and “female” includes the plural as well.
36. Manu Srinath, learned counsel, made the following submissions:
a. Persons whose fundamental rights are violated are entitled to
seek judicial review of the violating act;
b. It is permissible for judicial review to result in an increase in the
size of the intended pool of beneﬁciaries of a legislation. Such
an exercise will not amount to legislation by courts; and
c. Judicial review is a tool to achieve social justice. It is also a tool
by which constitutional aspirations and ideals are achieved.
37. Jaideep Gupta, learned counsel, made the following submissions:
a. If recognition is accorded to marriage by queer persons, they
will be protected from so-called “conversion therapies” which
attempt to “convert” the sexual orientation of queer people into
a heterosexual orientation as well as forced marriages;
b. Queer marriages do not fall within the degrees of prohibited
relationships; and
c. The classiﬁcation on the basis of age in the SMA ought to be
declared unconstitutional insofar as it mandates a diﬀerent
minimum age requirement for men and women. This Court ought
to declare twenty-one years as the ideal age for all marriages.
The Prohibition of Child Marriage (Amendment) Bill 2021,
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1267
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

which seeks to raise the legally permissible age of girls to marry
from eighteen years to twenty-one years is currently pending in
Parliament.
38. Thulasi Raj, learned counsel, submitted that:
a. The exclusion of the LGBT community from the institution of
marriage is “demeaning” as deﬁned by Deborah Hellman; and
b. Prejudicial notions about sexuality inform the SMA although its
provisions may not expressly contain words which indicate such
prejudices.
39. Tanushree Bhalla, learned counsel, submitted that:
a. The word “man” in the SMA ought to be read as meaning a
cisgender man, a transgender man, and any person who assumes a
role in the marriage that the statute or society or the institution of
marriage confers on men. The word “woman” must be interpreted
in a similar fashion;
b. Section 4(c) of the SMA excludes intersex persons; and
c. A minimum age at which persons of the “third gender” may
marry may be read in, in Section 4(c) of the SMA.
40. In addition to the above submissions, some senior counsel and
counsel sought to address this Court on the ‘notice and objections regime’ in
the SMA (i.e., Sections 5 to 9 of the SMA which stipulate a set of procedural
preconditions to the solemnization of marriages under the SMA). This Court
has not heard arguments on this issue in the present proceedings.
41. Mr. R. Venkataramani, learned Attorney General of India appearing
for the Union of India, made the following submissions:
a. This Court has already issued constitutional declarations on the
right to form a family, and the right to marry of non-heterosexual
persons in Navtej (supra). The issue in this batch of petitions
relates to ﬁtting the constitutional declaration into relevant laws;
b. The SMA is a species of the general marriage laws. Marriage is
conceived to be a union between heterosexuals across all laws
on marriage and procreation is an essential aspect of marriage;
1268 SUPREME COURT REPORTS [2023] 16 S.C.R.

c. At the time when the SMA was enacted, an alternative conception
of a union of persons (other than heterosexuals) did not exist.
The SMA is intended to regulate marriage between heterosexuals
irrespective of caste and religion. Thus, the omission of non-
heterosexual unions from the purview of the enactment would
not render the enactment unconstitutional because of under-
inclusiveness. The SMA will be underinclusive only when a
class of heterosexuals is excluded by the statute;
d. There would be no internal cohesion in the SMA if Section 4 is
read in a gender-neutral manner. Such an interpretation would
render the implementation of Sections 19 to 21A which link the
SMA with other personal and non-personal laws diﬃcult;
e. Courts can use the interpretative tool of reading-in only when
the stated purpose of the law is not achieved. Since the purpose
of SMA is to regulate heterosexual marriages, this Court cannot
read words into the enactment to expand its purview beyond
what was originally conceptualized;
f. It is up to Parliament to enact a special code regulating non-
heterosexual unions and the speciﬁc issues that such unions would
face during and after the partnership, after comprehensively
engaging with all stakeholders;
g. The course adopted by this Court in Vishaka (supra) cannot be
replicated for two reasons: one, there is no legislative vacuum
in the instant case, and second, the non-inclusion of all possible
kinds of unions cannot be construed as a constitutional omission;
h. Courts cannot issue directions granting legal recognition to non-
heterosexual marriages because it would require the redesigning
of several enactments and rules. Marriage rights must be given
only through the parliamentary process after wide consultation;
and
i. A declaration by this Court granting legal recognition to non-
heterosexual marriages accompanied with a scheme of rights
would be anathema to separation of powers. This Court must
not venture into the realm of policy making and law making.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1269
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

42. Mr. Tushar Mehta, learned Solicitor General appearing for the
Union of India, made the following submissions:
a. The institution of marriage occupies a central role in the
sustenance and progression of humankind. The prominent
components of a marriage are companionship, sexual intimacy,
and most importantly, procreation. Marriage (from an individual
perspective) serves the purpose of sustaining an individual’s gene
pool. From a societal perspective, marriage contributes towards
the proliferation of future generations for the sustenance of
humankind;
b. The Constitution does not recognize a right to marry. An
expression of a person’s sexuality is protected under Article 19(1)
(a) of the Constitution. However, marriage cannot be traced to
the right to freedom of expression or the right to form unions
under Article 19(1)(c);
c. This Court has not previously recognized the right to marry under
the Constitution. The observations of this Court in Shaﬁn Jahan
(supra) and Shakti Vahini (supra) that the petitioners’ right to
marry has been violated must be read in the speciﬁc context
of these judgments. In these cases, the right to marry which is
conferred by the legislature to inter-caste and inter-religious
couples was violated by State and non-State actors;
d. Marriage is a creation of statutes. The State by virtue of Entry 5
of List III of the Seventh Schedule has the power to regulate the
institution of marriage. In exercise of this power, the legislature
has prescribed various conditions which must be fulﬁlled before
legal recognition can be given to a union. These conditions inter
alia include the minimum age to be able to consent to a marriage,
the prohibition of bigamy, and the bar against marrying within
the degrees of prohibited relationship;
e. The State is not under an obligation to grant legal recognition to
every type of relationship. The State only recognizes relationships
when there exists a legitimate state interest. The State has a
1270 SUPREME COURT REPORTS [2023] 16 S.C.R.

legitimate State interest in legally recognizing heterosexual
relationships for the sustenance of society;
f. After the decriminalization of homosexuality in Navtej (supra),
members of the LGBTQIA+ community have the freedom and
autonomy to choose their partners without restraints on gender
and sexuality. However, the decriminalization of the sexual
oﬀence does not cast an obligation on the State to grant legal
recognition to such relationships or unions. Marriage is a legal
privilege. It is conditional upon statutory or societal conditions.
The right to choose a partner does not necessarily imply that
there is a right to marry a partner of choice;
g. The Courts do not have the power to decide if legal recognition
can be granted to a union of non-heterosexual individuals. This
is an issue which must necessarily be decided by the legislature,
being the elected representatives of the citizens;
h. It would become impossible to deny legal recognition to practices
such as incest or polygamy if non-heterosexual couples are
granted the right to marry;
i. Marriage is a public institution. It falls in the outer-most zone
of privacy and is thus, susceptible to the highest degree of
State regulation. This Court in Navtej (supra) only granted
protection to the intimate and intermediate zone of privacy of
non-heterosexual couples;
j. Both the father and the mother have a signiﬁcant and unique role
in the upbringing of children. In non-heterosexual unions, the
child born out of surrogacy or artiﬁcial reproductive technology
or adopted by the couple would feel the absence of either a
father or a mother. The State does not grant legal recognition to
homosexual unions in the form of marriage to protect the interest
of the children. This is a legitimate State interest. The petitioners
have not submitted suﬃcient data to back their claim that the
interest of a child brought up by a non-heterosexual couple is
protected;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1271
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

k. Granting legal recognition to non-heterosexual unions would
dilute heterosexual marriages. For example, in Netherlands,
more heterosexual couples have opted for domestic partnerships
and cohabitation after legal recognition was granted to non-
heterosexual unions. Non-heterosexual unions are not granted
legal recognition to protect the institution of marriage;
l. The impugned provisions of the SMA are constitutional because:
i. The legislative debates during the introduction of the
SMA indicate that Parliament made a conscious decision
to exclude non-heterosexual unions from the ambit of the
SMA;
ii. The object of the SMA is to grant (and regulate) legal
recognition to inter-faith and inter-caste unions of
heterosexual couples. The provisions of the SMA have a
reasonable nexus to this object;
iii. There is an intelligible diﬀerentia in classifying unions into
heterosexual and non-heterosexual partnerships because
heterosexual couples sustain a society through precreation.
In fact, the Transgender Persons Act also classiﬁes persons
into homosexuals and heterosexuals and grants substantive
rights to the members of the LGBTQIA+ community in
furtherance of the mandate of substantive equality. The
Transgender Persons Act recognizes the autonomy of the
members of the LGBTQI+ community to choose a partner
of their choice;
iv. The constitutionality of a statute cannot be challenged on
the ground of under-inclusion;
v. An emerging body of evidence indicates that homosexuality
may be an acquired characteristic and not an innate
characteristic. Children who have been exposed to
homosexual experiences are more likely to identify as
a homosexual on attaining adulthood. Thus, this Court
must not approach this issue from a “linear reductionist
perspective.” Further, the argument of the petitioners that
1272 SUPREME COURT REPORTS [2023] 16 S.C.R.

the SMA is unconstitutional because it is excludes a class
based on innate characteristics is erroneous;
vi. The SMA would become unworkable if it is read in a
gender-neutral manner. It would also amount to this Court
re-drafting a large number of provisions:
A. Section 2(b) read with the First Schedule prescribes
distinctive degrees of prohibited relationships for the
bride and the groom;
B. According to Section 4(c), the male must have
completed twenty-one years of age and the female
must have completed eighteen years of age at the time
of marriage. Reading the phrase ‘spouse’ in place
of ‘male’ and ‘female’ would render the distinctive
minimum age requirement for marriage based on
gender otiose;
C. The form of the statutory oath which the parties are
required to take for the solemnization of their marriage
expressly uses the phrases ‘wife’ and ‘husband’;
D. According to Section 21, the rules of succession
provided in the Indian Succession Act 192552 govern
the succession of property of any person who is
married under the SMA. The ISA prescribes diﬀerent
rules and procedures for succession based on gender.
Reading the provisions of the SMA in a gender-
neutral manner would impact the interpretation of the
provisions of the ISA as well;
E. By virtue of Section 21A, the rules of succession
under the HMA shall apply for marriages solemnized
between a male and female professing the Hindu,
Buddist, Sikh or Jain religion. The HSA prescribes
different rules for succession based on gender.

52 “ISA”
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1273
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

Reading the provisions of the SMA in a gender-neutral
manner would render the HSA unworkable; and
F. Other provisions of the SMA such as Sections 27, 31,
36, and 37 cater to the needs and requirements of a
woman in a heterosexual marriage. A reading of the
SMA in a gender-neutral manner would impact the
interpretation of these provisions.
m. By declaring that non-heterosexual couples have a right to marry,
this Court would be granting legal recognition to a new social
relationship. Such a declaration by this Court could also pre-empt
debates on this issue in the legislature; and
n. The term ‘spouse’ in Section 7A of the Citizenship Act 1955
cannot be read in a gender neutral manner. Section 7A of the
Citizenship Act applies to the same class of persons to whom
the FMA applies. The FMA expressly uses the phrases ‘bride’
and ‘bridegroom.’ Section 4 of the FMA prescribes the same
conditions for the registration of a marriage as Section 4 of SMA.
43. Mr. Kapil Sibal, learned senior counsel appearing for intervenor
made the following submissions:
a. Marriage was deﬁned by the social acceptability of a relationship
even before it was codiﬁed. The heterosexual nature of a marriage
was not introduced by law. Law merely regulated unions
which were socio-historically recognised. The law has always
diﬀerentiated between heterosexual and non-heterosexual unions;
b. A legal recognition of a union is premised on the recognition of
a relationship on an individual level, family level, and societal
level;
c. The right of a person to choose a partner of their choice is
protected under Article 21. However, the legislative recognition
of such a choice is not a fundamental right;
d. The right to marry cannot be traced to the right to privacy. The
right to privacy postulates the right to be left alone. There is a
negative obligation on the State and the society to not interfere
1274 SUPREME COURT REPORTS [2023] 16 S.C.R.

with choices of individuals. However, if the exercise of the right
to privacy has a public dimension, the State must regulate the
exercise of the right in the larger interest of the community. The
State has, in the past, regulated the parameters of choice within
the realm of marriage with respect to the number of partners and
the age of marriage. Thus, the right to the recognition of non-
heterosexual unions is not traceable in Article 21;
e. The South African Supreme Court in Minister of Home Aﬀairs
v. Fourie53 and the United States Supreme Court in Obergefell
v. Hodges, Director, Department of Health54 while recognising
the right to marry acknowledged the importance and relevance
of social debate and public discourse on the issue. The courts
observed that the public has become more accepting of non-
heterosexual unions. While it may not be necessary to reach
public consensus on social issues, it is still important to have some
form of discourse on the issue be it through law commissions,
referendums, bills in the legislature, or even High Court
decisions;
f. Public engagement also goes hand-in-hand with an incrementalistic
approach by the courts or the legislature. For example, Mexico
City recognised cohabitation partnership of homosexual unions
in 2006. Three years later, their right to marry was recognised.
In South Africa, before the judgment in Fourie (supra), the
constitutional court had dealt with the criminalisation of
sodomy,55 the rights of same-sex immigrant partners56, the right
to adoption of same-sex partners57, and the non-inclusion of
same-sex partners in a statute providing pension rights 58;
g. This Court instead of limiting its judgment to the reliefs sought
by the petitioners, must also address the following issues:

53 (2006) 1 SA 524
54 576 US 644 (2015)
55 Sodomy Case, 1999(1) SA 6 (CC)
56 Home Aﬀairs case, 2000(2) SA 1 (CC)
57 Du Troit, 2003 (2) SA 198 (CC)
58 Satchwell, 2002 (6) SA 1 (CC)
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1275
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

(i) Whether the LGBTQIA+ community, being a sexual
minority, is entitled to be protected even in the absence of
a law;
(ii) The recognition of the hindrances faced by LGBTQIA+
unions and the procedure to resolve the diﬃculties; and
(iii) The necessity of administrative procedures and guidelines
recognizing that sexual orientation is a physiological
phenomenon and that same sex unions must not be
discriminated against.
h. The assumption of the petitioners that both law and society
must consider non-heterosexual unions as belonging to the
same class as heterosexual unions without distinction based on
sexual orientation is wrong. The exclusion of non-heterosexual
unions from the SMA is not violative of Articles 14 and 15 of
the Constitution;
i. Marriage between “any two persons” as provided in Section 4
of SMA and FMA cannot include non-heterosexual unions for
the following reasons:
(i) Section 4(a) states that marriage cannot be solemnised if
either party has a spouse living at the time of marriage. The
SMA, when it was enacted, referred to marriages which
had taken place before it came into force. In that case, the
word ‘spouse’ could have only been used in the context of
heterosexual marriages; and
(ii) The mere usage of a gender-neutral term does not indicate
the legislative will to include non-heterosexual unions
within the ambit of the enactment.
j. The statute is not underinclusive for impliedly excluding non-
heterosexual unions from its purview because Parliament did
not contemplate the inclusion of non-heterosexual marriages
at the time of enactment. A statute will be under-inclusive only
where a statute which must necessarily cover a category excludes
them from the beneﬁts it confers. The principle will not apply to
persons who are not ex-facie covered by the statute;
1276 SUPREME COURT REPORTS [2023] 16 S.C.R.

k. The interpretative tool of “reading-in” means reading into the
text of the statute and not altering it. Reading the word “spouse”
into SMA where the words “husband” and “wife” are used would
render provisions which are enacted based on conventional ideas
about a heterosexual relationship redundant;
l. The legislative regime related to marriage and other allied
issues has been enacted in response to the unique challenges
that heterosexual marriages face. Even if this Court ﬁnds that
the Constitution grants a right to legal recognition of non-
heterosexual unions, a new legislative regime regulating non-
heterosexual marriages must be introduced to respond to the
unique challenges they face; and
m. This Court can use its power under Article 142 to ﬁll legislative
vacuums to the limited extent of laying down procedural
guidelines. The court cannot create substantive rights and
obligations to ﬁll a legislative vacuum because it would amount
to judicial legislation. This Court can neither direct the legislature
to enact a law nor direct the legislature when to enact a law. These
are established parameters of separation of powers and must be
respected.
44. Mr. Arvind P Datar, learned senior counsel appearing for one of
intervenors made the following submissions:
a. This Court has recognised the right to marry in KS Puttaswamy
(9J) (supra), Shaﬁn Jahan (supra), Shakti Vahini (supra) and
Navtej (supra). However, only Justice Nariman’s opinion in
Navtej (supra) held that non-heterosexual couples also have a
right to marry;
b. A statute can be struck down after a passage of time only if
the rationale of the law ceases to exist as in the case of Section
377 of the IPC where medical research indicated that same sex
relationships are not unnatural or against the order of nature;
c. This Court while interpreting provisions of a statute can “iron out
the creases but not alter the fabric.” The exercise of reading up
can only be undertaken by the Courts when it would be consistent
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1277
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

with legislative intention, when it would not alter the nature of
the enactment, and when the new state of aﬀairs would be of the
same kind as the earlier state of aﬀairs to which the enactment
applies;
d. The judgment of the High Court of Madras in Arunkumar
(supra) interpreting the word “bride” in the Hindu Marriage Act
to include transgender and intersex persons is contrary to the
judgment of this Court in Madhu Kishwar v. State of Bihar59
where it was held that male pronouns must not be expansively
interpreted to include female pronouns within their ambit;
e. The legal recognition of non-heterosexual unions is a polycentric
issue which cannot be resolved solely by the judiciary;
f. Unenumerated rights or derivate rights, which are recognised by
courts through judicial interpretation are inchoate rights because
they are an exception to the rule of ubi jus ibi remedium.60 Thus,
even if this Court recognises the petitioners’ right to marry, it is
not enforceable.
45. Ms. Aishwarya Bhati, learned Additional Solicitor General,
appearing for one of the intervenors made the following submissions:
a. Article 21 guarantees that every child will have the best
upbringing. The petitioners have not submitted any data to prove
that the interests of the child would be protected if they are raised
by non-heterosexual parents. A child born to a heterosexual
couple is innately adaptable to a similar family environment and
naturally seeks out a family environment which is comparable
to their birth family;
b. Chapter II of the JJ Act which lays down the General Principles
of Care and Protection of Children stresses upon the best interest
of the child. Principle xiii states that every child in the juvenile
justice system has a right to be restored to the same socio-
economic and cultural status as they were earlier in;

59 (1996) 5 SCC 125
60 HM Seervai, The Privy Purse Case: A Criticisum, (1972) 74 Bom LR (journal) 37
1278 SUPREME COURT REPORTS [2023] 16 S.C.R.

c. Men and women are diﬀerentiated for the purpose of adoption,
assisted reproduction, and surrogate reproduction. For example,
the law does not permit a man to adopt a girl child. The scheme
of the laws relating to adoption and surrogacy must be revamped
for the inclusion of any of the excluded categories of intending
parents; and
d. The law protects a child by assuming that they are incapable of
entering in contracts, of committing an oﬀence, and of consenting
to a sexual relationship. Thus, children cannot be imposed upon
with emerging and evolving notions of gender ﬂuidity. Children
cannot be made guinea pigs of an evolving social experiment.
The state is justiﬁed in prescribing reasonable restrictions for
adoption, assisted reproductive technology, and surrogacy based
on the welfare of children.
46. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf
of the State of Madhya Pradesh made the following submissions:
a. Only thirty-four of the one hundred and ninety-four countries
have recognised marriage between non-heterosexual individuals.
Out of the thirty-four countries, the legislature has recognized
it in twenty-four of them. At least twenty of the twenty-four
countries enacted a framework for registered partnerships or
civil unions for granting legal recognition to non-heterosexual
unions. In ten countries, the courts have directed the State to
recognise non-heterosexual marriages. The approach taken by
the courts in these ten countries is not uniform. The approach is
speciﬁc to social complexities and legal arrangements in each
of the countries;
b. The laws relating to marriage, and the beneﬁts (and rights)
which accrue because of marriage are not uniform. The laws
take into account religious and regional differences. The
principle of non-discrimination in Article 14 and 15(1) does
not mandate that marriage must be organised and recognised in
a uniform manner. The principle of equality does not postulate
uniformity;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1279
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

c. The principle of non-discrimination in Article 14 is not violated
if the law is not “all-embracing.” The legislature can choose to
remedy certain degrees of harm;
d. It is for the legislature to decide if non-heterosexual unions must
be legally recognised, and what beneﬁts and entitlements must
be conferred to the union;
e. Legislations governing unions and the beneﬁts which accrue
because of unions do not become unconstitutional after
the decriminalisation of homosexuality in Navtej (supra).
Decriminalisation of a sexual oﬀence does not automatically
confer legal recognition to a union;
f. The opinion of the majority in Navtej (supra) held that
homosexuals have a right to form a union under Article 21.
This Court speciﬁcally observed that a union does not mean
marriage. Thus, Navtej (supra) has ruled out the possibility of
non-heterosexual marriages; and
g. The observation in Puttaswamy (9J) (supra) that the State has
a positive obligation to provide legal protection to enable the
exercise of choice was limited to the speciﬁc context of data
protection. Such an obligation can be imposed on the State only
when a right is infringed because of actions of the State.
47. Mr. Maninder Singh, learned senior counsel, submitted that Section
112 of the Indian Evidence Act 1872 which provides that birth during the
sustenance of marriage or two hundred and eighty days after the dissolution
of marriage is a conclusive proof of legitimacy establishes that procreation is
a chief component of marriage. He further submitted that an alteration of the
chief component of marriage would render other laws which are premised
on the heteronormative nature of marriage unworkable.
48. Mr. Atamaram Nadkarni, senior counsel appearing for an
intervenor (Akhil Bharatiya Sant Samiti) submitted that the SMA is
interwoven with personal law. He argued that the recognition of non-
heterosexual marriages under the SMA would impact personal laws on
succession, and adoption.
1280 SUPREME COURT REPORTS [2023] 16 S.C.R.

49. Ms. Manisha Lavkumar, learned senior counsel appearing for the
State of Gujarat made the following submissions:
a. Though the rules of marriage continue to evolve, they are still
grounded in heterosexual relationships;
b. There is an overarching State interest in excluding non-
heterosexual unions from the ambit of marriage because it: (a)
regulates matrimonial conduct; (b) preserves social order; and
(c) ensures the progression of society in a legitimate manner;
c. The State can impose reasonable restrictions on individual
autonomy and consent by introducing conditions such as the
number of marriages, the minimum age for marriage and the
degrees of prohibited relationship. The heterosexual nature of a
relationship is one such reasonable restriction; and
d. The FMA is modelled on the SMA. The FMA also envisages a
heterosexual union. Section 23 of the FMA states that the Central
Government may recognise marriages solemnised in a foreign
country as valid in India only if the law in the foreign country
on marriage is similar to the FMA. Since the FMA only includes
heterosexual unions, a non-heterosexual marriage solemnised in
a foreign country cannot be recognised in India.
50. Mr. J Sai Deepak, learned counsel appearing on behalf of an
intervenor made the following submissions:
a. A judicial sanctioned legal recognition of non-heterosexual union
would be a colonial top-down imposition of morality. Such an
approach would diminish democratic voices in the process;
b. The issue of lack of legal recognition of non-heterosexual
unions is placed diﬀerently as opposed to the legislative vacuum
on sexual harassment at workplaces. The history and purpose
of the SMA does not permit the Court to issue guidelines under
Article 141 as it did in Vishaka (supra). The power under Article
141 to issue guidelines must be used sparingly. The power must
not be used to take over the functions of the other organs of the
State;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1281
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

c. The judgments of this Court in NALSA (supra) and the Madras
High Court in Arun Kumar (supra) suﬀer from internal and
external inconsistencies; and
d. The LGBTQIA+ community is not a homogenous class. The
court cannot cater to the interests of a heterogenous class which
they constitute. The legislature would be better placed to cater
to their needs.
51. Mr. MR Shamshad, learned counsel appearing for an intervenor
submitted that a declaration that non-heterosexual couples have a right to
marry would conﬂict with the tenets of religion where marriage is considered
a heterosexual union.
52. Ms. Priya Aristotle, learned counsel appearing for an intervenor
submitted that granting non-heterosexual couples parental rights would
aﬀect the children of heterosexual couples.
53. Mr. Sasmit Patra, learned counsel appearing for the intervenor
submitted that:
a. Granting legal recognition to non-heterosexual unions would
require wide ranging amendments to various laws. It is only the
legislature which has the capacity and functionality to deal with
matters of such wide implication;
b. A declaration by this Court that non-heterosexual unions have
a right to marry cannot be implemented without the aid of the
legislature and executive; and
c. A social change of this magnitude will not be fructiﬁed if the
role of the polity in the process is negligent.
54. Ms. Archana Pathak Dave, learned counsel appearing for an
intervenor (Ex-Servicemen Advocates Welfare Association) submitted that
non-heterosexual marriages must not be permitted particularly for personnel
working in the armed forces because Article 33 permits restrictions on their
fundamental rights. It was submitted that granting legal recognition to non-
heterosexual marriages may dilute the disciplinary code in the army, the
navy, and the air force, would create conﬂicts in the workplace over personal
and religious beliefs, and would raise concerns about shared facilities such
as communal showers and shared rooms.
1282 SUPREME COURT REPORTS [2023] 16 S.C.R.

55. Ms. Manisha Narain Agarwal, learned counsel appearing for an
intervenor submitted that the petitioners are seeking social acceptance of
their relationships through an order the Court. This Court does not have
powers of such magnitude.
56. Mr. Atulesh Kumar, Ms. Sanjeevani Agarwal, and Mr. Som Thomas
appearing on behalf of various intervenors adopted the above arguments.
C*. Reliefs sought in the proceedings
57. The petitioners in this batch of petitions have made certain general
prayers, in addition to the prayers speciﬁc to the facts of their case. The
general reliefs sought are summarized below. The petitioners seek that this
Court declare that:
a. LGBTQ persons have a right to marry a person of their choice
regardless of religion, gender and sexual orientation;
b. The SMA is violative of Articles 14, 15, 19, 21, and 25 of the
Constitution insofar as it does not provide for the solemnization of
marriage between same-sex, gender non-conforming or LGBTQ
couples;
c. The SMA applies to any two persons who seek to get married,
regardless of their gender identity and sexual orientation;
d. The words “husband” and “wife” as well as any other gender-
speciﬁc term in the SMA ought to be substituted by the word
“party” or “spouse”;
e. All rights, entitlements and benefits associated with the
solemnization and registration of marriage under the SMA are
applicable to LGBTQ persons;
f. Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA which contain
requirements regarding the publication of a public notice of a
proposed marriage and the domicile of the couple, and which
empower the Marriage Registrar to receive and decide objections
to the proposed marriage are violative of Articles 14, 15, 19 and
21 of the Constitution;
* Ed. Note: PART C
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1283
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

g. The validity of marriages already solemnized or registered under
the SMA will not be jeopardized if one spouse transitions to their
self-determined gender identity;
h. The word “spouse” in Section 7A(1)(d) of the Citizenship Act is
gender-neutral and is applicable to all spouses of foreign origin
regardless of sex or sexual orientation;
i. LGBTQ couples have a right to register their marriages under
Section 5 of the HMA and under Section 17 of the FMA if they
are lawfully married in a foreign jurisdiction and at least one of
them is an Indian citizen;
j. The FMA violates Articles 14, 15, 19 and 21 of the Constitution
of India and is unconstitutional and void insofar as it does not
provide for the registration of marriages between same-sex or
gender non-conforming or LGBTQ couples;
k. The FMA applies to any two persons who seek to get married,
regardless of their gender identity and sexual orientation;
l. The words “bride” and “bridegroom” as well as any other gender-
speciﬁc term in the FMA have to be substituted by the word
“party” or “spouse”;
m. All rights, entitlements, and benefits associated with the
solemnization and registration of marriage under the FMA are
applicable to LGBTQ persons;
n. Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI
of the Adoption Regulations are unconstitutional and ultra vires
the JJ Act insofar as they exclude LGBTQ couples from joint
adoption;
o. The words “married couple” and “marital relationship” used
in Regulations 5(2)(a) and 5(3) of the Adoption Regulations
encompass LGBTQ couples married under foreign laws;
p. The phrases “male applicant” and “female applicant” are
substituted by the phrases “Prospective Adoptive Parent 1” and
“Prospective Adoptive Parent 2 (in case of applicant couples)”
in Schedules II, III, VI and VII of the Adoption Regulations;
1284 SUPREME COURT REPORTS [2023] 16 S.C.R.

q. Section 5 of the HMA does not distinguish between homosexual
and heterosexual couples and the former have a right to marry
under the HMA;
r. LGBTQ persons have a constitutional right to a “chosen family”
in lieu of next of kin under all laws as an intrinsic part of their
right to a digniﬁed life under Article 21;
s. An unmarried person can nominate “any person(s)” to act as their
nominee or next of kin, irrespective of whether such person is
a “guardian, close relative or family member,” with respect to
healthcare decisions in case of incapacity such as the execution
of Advance Directives and assigning any legal right, interest,
title, claim or beneﬁt accrued to the person;
t. The State Governments must apply all preventative, remedial,
protective, and punitive measures including the establishment of
safe houses similar to the Garima Greh welfare scheme, in order
to guarantee the safety and security of all individuals irrespective
of gender identity and sexual orientation;
u. The provisions of matrimonial statutes including the rules
and regulations framed thereunder, to the extent that they are
construed as requiring one “male” or “bridegroom” and one
“female” or “bride” for the solemnization of marriage be read
as neutral as to gender identity and sexual orientation; and
v. All marriages between couples in which either one or both
partners are transgender or gender non-conforming or who
otherwise do not identify with the sex assigned to them at birth,
may be solemnized under matrimonial statutes regardless of their
gender identity and sexual orientation.
58. In addition, the petitioners have sought directions to the Union
Government, the State Governments, and district and police authorities
to adopt and follow a protocol in cases which concern adult, consenting
LGBTQ persons who require protection from their families, regardless of
whether such persons are married;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1285
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

D*. Analysis
i. This Court is vested with the authority to hear this case
59. The respondents argued that this Court should not decide the issue
of whether legal recognition in the form of marriage can be given to non-
heterosexual relationships. It was argued that this issue must necessarily be
decided by the people by themselves or through the elected representatives.
It was also submitted that this Court, by deciding the issue one way or the
other, would pre-empt any debate in the legislature.
60. The respondent’s submission is two-fold: ﬁrst, the Court does not
have the power to decide this issue; and second, such a decision can be
arrived at only through a process that reﬂects the electoral will.
a. Article 32 vests this Court with the power to enforce the rights in
Part III of the Constitution
61. Part III of the Constitution of India enshrines the fundamental rights
of the people of India. Article 13 of the Constitution stipulates that the State
shall not make any law which takes away or abridges the rights conferred
in Part III and that any law made in contravention of this condition, shall,
to the extent of the contravention, be void. Article 32 complements Article
13 and provides the right to a constitutional remedy for the enforcement of
rights conferred by Part III:
“Article 32. Remedies for the enforcement of rights conferred by this
Part.
(1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari, whichever may be appropriate,
for the enforcement of any of the rights conferred by this Part.”
(emphasis supplied)
62. The Constitution of India is unique in that its provisions expressly
accord the judiciary with the power to review the actions of the legislative and
* Ed. Note: PART D
1286 SUPREME COURT REPORTS [2023] 16 S.C.R.

executive branches of government, unlike in many other countries. Article
32 makes fundamental rights justiciable and is worded broadly. The right to
approach this Court for the enforcement of the fundamental rights embodied
in Part III is itself a fundamental right by virtue of Clause (1) of Article 32.
It states that this Court may be moved “by appropriate proceedings.” This
expression means that the appropriateness of the proceedings depends on
the relief sought by the petitioner.61 Clause (1) of Article 32 does not place
any constraints on the power of this Court to entertain claims that the rights
enumerated in Part III have been violated.
63. Similarly, Clause (2) is worded expansively and enlarges the scope
of the powers of this Court to enforce fundamental rights. This is evident
from two parts of the clause:
a. First, Clause (2) provides this Court with the power to issue
“directions, orders, or writs,” which indicates that this Court
may mould the relief according to the requirements of the case
before it and that it is not constrained to a particular set of cases
in which a particular relief or set of reliefs may be granted.
This expression indicates that the power of this Court is not
limited to striking down an oﬀending statute, rule, or policy.
Rather, it extends to issuing directions or orders or writs for
the enforcement of fundamental rights. Put diﬀerently, this
means that the power of this Court is not only ‘negative’ in
the sense that it may restrain the state from doing something
which infringes upon the fundamental rights of people but is
also ‘positive’ in the sense that it may compel the state to do
something or act in a manner which gives eﬀect to such rights;
and
b. Second, the word “including” in Clause (2) indicates that the
ﬁve writs mentioned in that clause are illustrative. The word
“including” is used as a word of enlargement. This Court
may issue directions, orders, or writs other than the ﬁve writs
speciﬁed.62

61 Daryao v. State of U.P, (1962) 1 SCR 574
62 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
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Therefore, the manner in which Article 32 has been drafted does not
limit the powers of this Court. To the contrary, it clearly and unambiguously
vests this Court with the power to conduct judicial review and give eﬀect
to the fundamental rights enumerated in Part III.
64. The extent of the powers vested in this Court by Article 32 as
envisaged by the framers of the Constitution can be understood from the
Constituent Assembly’s discussion of the provision which was eventually
adopted as Article 32.63 Mr. H V Kamath was of the opinion that it was unwise
to particularize the writs which this Court ought to issue, and that this Court
should have the power to issue any directions it considered appropriate in a
case.64 In service of this idea, he moved an amendment to substitute clause (2)
of the provision which is now Article 32. The substituted clause was to read:
“The Supreme Court shall have power to issue such directions or orders
or writs as it may consider necessary or appropriate for the enforcement
of any of the rights conferred by this part.”65
65. Responding to this proposal, Dr. B R Ambedkar underscored that
this Court had been endowed with wide powers of a general nature:
“…what has been done in the draft is to give general power as well
as to propose particular remedies. The language of the article is very
clear … These are quite general and wide terms.
… these writs … ought to be mentioned by their name in the
Constitution without prejudice to the right of the Supreme Court
to do justice in some other way if it felt it was desirable to do so.
I, therefore, say that Mr. Kamath need have no ground of complaint
on that account.”66
(emphasis supplied)
The power of this Court to do justice is not, therefore, limited either
by the manner in which Article 32 has been constructed or by any part of

63 Vikram Aditya Narayan and Jahnavi Sindhu, ‘A historical argument for proportionality
under the Indian Constitution’ (2018) Vol. 2(1) ILR 51
64 Constituent Assembly Debates, Volume 7, 9 December 1948.
65 Constituent Assembly Debates, Volume 7, 9 December 1948.
66 Constituent Assembly Debates, Volume 7, 9 December 1948.
1288 SUPREME COURT REPORTS [2023] 16 S.C.R.

the Constitution. It is amply clear from both the plain meaning of Article
32 as well as the Constituent Assembly Debates that this Court has the
power to issue directions, orders, or writs for the enforcement of the rights
incorporated in Part III of the Constitution.
b. Judicial review and separation of powers
66. The doctrine of separation of powers, as it is traditionally understood,
means that each of the three organs of the state (the legislature, the executive,
and the judiciary) perform distinct functions in distinct spheres. No branch
performs the function of any other branch. The traditional understanding
of this doctrine (also termed the “pure doctrine”67) does not animate the
functioning of most modern democracies. That our Constitution does not
reﬂect a rigid understanding of this doctrine has long been acknowledged
by this Court.68 In practice, a functional and nuanced version of this doctrine
operates, where the essential functions of one arm of the state are not taken
over by another arm and institutional comity guides the actions of each arm.69
In other words, the functional understanding of the separation of powers
demands that no arm of the state reigns supreme over another.
67. Thu Union of India suggested that this Court would be violating
the doctrine of separation of powers if it determines the lis in this case. The
separation of powers undoubtedly forms a part of the basic structure of the
Constitution, but equally, the power of courts to conduct judicial review is
also a basic feature of the Constitution.70 The doctrine of separation of powers
certainly does not operate as a bar against judicial review. 71 In fact, judicial
review promotes the separation of powers by seeing to it that no organ acts
in excess of its constitutional mandate. It ensures that each organ acts within
the bounds of its remit. Further, as discussed in the previous segment of
this judgment, the Constitution demands that this Court conduct judicial
review and enforce the fundamental rights of the people. The framers of our
Constitution were no doubt conscious of this doctrine when they provided

67 MJC Vile, Constitutionalism and the Separation of Powers (2nd ed. Liberty Fund
1967).
68 Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225
69 Kalpana Mehta v. Union of India, (2018) 7 SCC 1
70 S P Sampath Kumar v. Union of India, (1987) 1 SCC 124
71 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
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for the power of judicial review. Being aware of its existence and what it
postulates, they chose to adopt Article 32 which vests this Court with broad
powers. The doctrine of separation of powers cannot, therefore, stand in the
way of this Court issuing directions, orders, or writs for the enforcement of
fundamental rights. The directions, orders, or writs issued for this purpose
cannot encroach upon the domain of the legislature. This Court cannot make
law, it can only interpret it and give eﬀect to it.
68. The existence of the power of judicial review cannot be conﬂated
with the manner in which the power is exercised. The exercise of the power
of judicial review abides by settled restraints which acknowledge that the
power of law making is entrusted to democratically elected legislative
bodies and that the formulation and implementation of policy is entrusted
to a government which is accountable to the legislature. In the exercise of
its the legislative function the legislature may incorporate policies which
will operate as binding rules of conduct to operate in social, economic and
political spaces. Judicial review is all about adjudicating the validity of
legislative or executive action (or inaction) on the anvil of the fundamental
freedoms incorporated in Part III and on the basis of constitutional provisions
which structure and limit the exercise of power by the legislative and
executive arms of the State.
69. Judicial review is a constitutionally entrenched principle which
emanates from Article 13. It is not a judicial construct. The power of judicial
review has been expressly conferred by the Constitution. In the exercise
of the power of judicial review, the Court is cognizant of the fact that the
legislature is a democratically elected body which is mandated to carry out
the will of the people. It is in furtherance of this mandate that Parliament
and the State legislatures enact laws. Courts are empowered to adjudicate
upon the validity of legislation and administrative action on the anvil of the
Constitution. In the exercise of the power of judicial review, the Court does
not design legislative policy or enter upon the legislative domain. This Court,
will hence not enter into the legislative domain by issuing directions which
for all intents and purposes would amount to enacting law or framing policy.
c. The power of this Court to enforce rights under Article 32 is diﬀerent
from the power of the legislature to enact laws
1290 SUPREME COURT REPORTS [2023] 16 S.C.R.

70. In Powers, Privileges and Immunities of State Legislatures, In re,72
a seven-Judge Bench of this Court held:
“…whether or not there is distinct and rigid separation of powers
under the Indian Constitution, there is no doubt that the Constitution
has entrusted to the Judicature in this country the task of construing
the provisions of the Constitution and of safeguarding the fundamental
rights of the citizens … If the validity of any law is challenged before
the courts, it is never suggested that the material question as to whether
legislative authority has been exceeded or fundamental rights have
been contravened, can be decided by the legislatures themselves.
Adjudication of such a dispute is entrusted solely and exclusively to
the Judicature of this country…”
Hence, it falls squarely within the powers of this Court to adjudicate
whether the fundamental rights of queer persons have been infringed, as
claimed by the petitioners.
71. This Court will not issue a mandamus to Parliament but will
determine the scope and eﬀect of certain fundamental rights. What do
these rights mean and what are their incidents? What do they require of the
state? What are their boundaries? In answering these questions, this Court
is not enacting law or framing policy but is performing its constitutionally
mandated function of interpreting the Constitution and enforcing the rights
it recognizes. This Court cannot ignore its duty to fulﬁl the mandate of
Articles 13 and 32. The distinction between law-making and adjudicating
the rights of the people by interpreting the Constitution and enforcing these
rights, as required by Article 32, cannot be forgotten.
72. This Court has previously utilized its power under Article 32 to
issue directions or orders for the enforcement of fundamental rights. This
power does not extend only to striking down an oﬀending legislation but
also to issuing substantive directions to give eﬀect to fundamental rights, in
certain situations. In Common Cause v. Union of India,73 a Constitution
Bench of this Court (of which one of us, Justice D Y Chandrachud was a

72 (1965) 1 SCR 413
73 (2018) 5 SCC 1
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part) found that the right to life, dignity, self-determination, and individual
autonomy meant that people had a right to die with dignity. This Court
delineated guidelines and safeguards in terms of which Advance Directives
could be issued to cease medical treatment in certain circumstances.
Similarly, in Vishaka (supra) this Court issued guidelines for the protection
of women from sexual harassment at the workplace. These guidelines were
grounded in the fundamental rights to equality under Article 14, to practise
any profession or to carry out any occupation, trade or business under
Article 19(1)(g), and to life and liberty under Article 21. The decisions of
this Court in Common Cause (supra) and Vishaka (supra) are signiﬁcant
because this Court issued directions for the enforcement of fundamental
rights in the absence of a law which was impugned before it.
d. The power of judicial review must be construed in terms of the
Constitution of India and not in terms of the position of law in other
jurisdictions
73. A common mistake in the legal community is to refer to the
doctrines and decisions of other jurisdictions regardless of the context in
which they arose. The jurisprudence of other countries no doubt facilitates
an exchange of ideas and acquaints us with the best practices in the ﬁeld. It
illuminates the potential beneﬁts and pitfalls of a particular approach and
enables us to dwell on whether to accept and if we do so, whether to improve
on that approach. However, a particular doctrine or legal standard ought not
to be borrowed blindly. The ﬁrst and foremost authority is the Constitution
or any law in India. An appropriate tool of interpretation must be used to
discern the law as laid down by the Constitution or by any statute, rule, or
regulation. This precept applies with equal force to the question of judicial
review in India. Judicial review has to be conscious of our own social and
cultural milieu and its diversity.
74. Parliament being sovereign in England, the courts of England do
not have the power to strike down a statute as being contrary to its basic law.
This status of aﬀairs cannot, of course, be superimposed on the relationship
between our legislative bodies and courts. In Powers, Privileges and
Immunities of State Legislatures, In re (supra), this Court held that the
Constitution is supreme and sovereign in India and that legislative bodies in
India are not sovereign in the same way as Parliament is in England. Hence,
1292 SUPREME COURT REPORTS [2023] 16 S.C.R.

the limitations which apply to the Supreme Court of the United Kingdom
while it conducts judicial review do not apply to this Court. Similarly, the
restrictions on judicial review in the United States of America cannot be
imported without any regard to our Constitution.
75. The Union of India relied on various decisions of the Supreme
Court of the United States of America including the decisions in Day-Brite
Lighting Inc. v. Missouri74 and the dissenting opinion of Oliver Wendell
Holmes, J. in Lochner v. New York75 for the proposition that this Court
would be in danger of becoming a “super legislature” if it decided the issues
which arise in the present proceedings. This argument misses the crux of
the matter. The Supreme Court of the United States of America established
its power of judicial review in Marbury v. Madison.76 The text of the US
Constitution does not vest their courts with this power, unlike in India. The
Constitution of India expressly authorises judicial review. While doing this
the Constitution confers broad powers on this Court as discussed in the
previous segment of this judgment. This being the case, it is injudicious to
borrow from the jurisprudence of the US on judicial review, its boundaries,
legitimacy, and the type of cases which warrant deference to legislative
bodies. In State of Madras v. V.G. Row,77 a Constitution Bench of this
Court held:
“20. …we think it right to point out, what is sometimes overlooked,
that our Constitution contains express provisions for judicial review
of legislation as to its conformity with the Constitution, unlike as in
America where the Supreme Court has assumed extensive powers of
reviewing legislative Acts … If, then, the courts in this country face
up to such important and none too easy task, it is not out of any desire
to tilt at legislative authority in a crusader’s spirit, but in discharge of
a duty plainly laid upon them by the Constitution.”
Similarly, in Romesh Thappar v. State of Madras,78 this Court
held that there was no remedy in the US which was analogous to the one

74 342 US 421 (1952)
75 198 US 45 (1905)
76 5 US 137 (1803)
77 (1952) 1 SCC 410
78 1950 SCC 436
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provided by Article 32 of the Constitution of India. Therefore, the contours
of the power of this Court to conduct judicial review must be construed in
terms of the Constitution of India and not in terms of the position of law
in other jurisdictions.
e. The role of courts in the democratic process
76. The argument of the respondents that any decision by this Court on
this issue would be anti-democratic is not an argument that is speciﬁc to the
issues which have been raised before us in this batch of petitions. Rather, it
is an argument which strikes at the legitimacy of the judicial branch. The
argument that the decision of the elected branch is democratic and that of the
judicial branch is not is premised on the principle of electoral representation.
The proposition is that the exercise of the power of judicial review would
constrain the right of citizens to participate in political processes. This is
because courts are vested with the power to overturn the will of the people
which is expressed through their elected representatives.
77. This is a narrow deﬁnition of democracy, where democracy
is viewed through electoral mandates and not in constitutional terms.
Additionally, it overlooks the importance of a Constitution which prescribes
underlying values and rules of governance for the sustenance of a democratic
regime. If all decisions of the elected wing of the State are considered to
be democratic decisions purely because of the manner in which it is vested
with power, what then, is the purpose of the fundamental rights and the
purpose of vesting this Court with the power of judicial review? Framing
the argument on the legitimacy of the decisions of this Court purely in
terms of electoral democracy ignores the Constitution itself and the values
it seeks to engender.
78. Electoral democracy – the process of elections based on the
principle of ‘one person one vote’ where all citizens who have the capacity
to make rational decisions (which the law assumes are those who have
crossed the age of eighteen) contribute towards collective decision making
is a cardinal element of constitutional democracy. Yet the Constitution
does not conﬁne the universe of a constitutional democracy to an electoral
democracy. Other institutions of governance have critical roles and functions
in enhancing the values of constitutional democracy. The Constitution
does not envisage a narrow and procedural form of democracy. When the
1294 SUPREME COURT REPORTS [2023] 16 S.C.R.

people of India entered into a social contract in the form of a Constitution,
they chose the conception of democracy which not only focused on rule by
elected bodies but also on certain substantive values and on institutional
governance. The Constitution deﬁned democracy in terms of equal rights
in political participation and of self-determination.
79. When democracy is viewed in this substantive and broad manner,
the role of courts is not democracy-disabling but democracy-enabling. Much
like the elected branch, the legitimacy of courts is also rooted in democracy.
It is rooted in not operating in a democratic manner because if it was, then
courts may be swayed by considerations which govern and guide electoral
democracy.79 By vesting the judicial branch with the power to review the
actions of other institutions of governance (including the legislature and
the executive) on the touchstone of constitutional values, the Constitution
assigns a role to the judiciary.80 The institutions of governance place a check
on the exercise of power of the other institutions to further constitutional
values and produce better, more democratic outcomes.
80. Courts contribute to the democratic process while deciding an issue
based on competing constitutional values, or when persons who are unable
to exercise their constitutional rights through the political process knock
on its doors. For instance, members of marginalized communities who are
excluded from the political process because of the structural imbalance
of power can approach the court through its writ jurisdiction to seek the
enforcement of their rights.
ii. Is queerness ‘un-Indian’? Who is an Indian? What practices are
Indian?
a. Queerness is a natural phenomenon which is known to India since
ancient times
81. The question of whether homosexuality or queerness is unnatural
is no longer res integra, in view of the decision in Navtej Singh Johar

79 Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’,
1982 Yale law journal, Vol 1(7) June 1982
80 Mathew EK Hall, Judicial Review as a Limit on Government Domination: Reframing,
resolving, and replacing the counter-majoritarian diﬃculty, 2016 Perspectives on
politics, Volume 14(2) June 2016 , 391
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(supra) where this Court held that it is innate and natural. The contention of
the Union of India that heterosexual unions precede law while homosexual
unions do not cannot be accepted in view of the decision in Navtej Singh
Johar (supra) where this Court held that queer love has ﬂourished in India
since ancient times.
82. The respondents have also averred that homosexuality or gender
queerness is not native to India. This contention does not hold any water.
In India, persons with a gender queer identity who do not ﬁt into the binary
of ‘male’ and ‘female’ have long been known by diﬀerent names including
hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi
maanbis. In fact, the term ‘transgender person’ as it is understood in English
or the ‘third gender’ does not always fully or accurately describe the gender
identity of those who are known by some of these terms. Additionally, the
social structure of the communities of transgender persons in India is unique
and does not mirror ‘western’ structures. It is native to our country. The
judgment of this Court in NALSA (supra) also explored the presence of
the transgender identity and other forms of gender queerness in Indian lore.
83. In With Respect to Sex: Negotiating Hijra Identity in South India,81
Gayatri Reddy documents the diﬀerent manifestations of kinship in hijra
communities, including the guru-chela (or teacher-disciple) relationship, the
mother-daughter relationship, and the ‘jodi’ (or bond) with a husband. She
describes how many hijras enter into unions with men, who are referred to
as their ‘pantis.’ These unions span over many months or many decades,
depending on the couple in question. Many men in such unions have made
their natal families aware about their relationship with their partner, and in
some cases, the hijras would sometimes meet their partner’s natal family.
They sometimes referred to their relationship as one of ‘marriage.’ Men
also assaulted their partners and displayed other violent tendencies. Some
hijras maintained contact with their biological family, most notably the
mother. Although many hijras were in romantic, long-lasting partnerships
with men or in touch with their natal family, they considered other hijras
as constituting their family as opposed to their ‘pantis’ or their biological

81 Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (The
University of Chicago Press 2005)
1296 SUPREME COURT REPORTS [2023] 16 S.C.R.

families.82 In many communities, hijras are customarily invited to auspicious
events (such as the birth of a child) to bless the family in question.
84. Like the English language, some English words employed to
describe queer identities may have originated in other countries. However,
gender queerness, transgenderism, homosexuality, and queer sexual
orientations are natural, age-old phenomena which have historically been
present in India. They have not been ‘imported’ from the ‘west.’ Moreover,
if queerness is natural (which it is), it is by deﬁnition impossible for it to be
borrowed from another culture or be an imitation of another culture.
b. Queerness is not urban or elite
85. The respondents, including the Union of India, have contended
that homosexuality and queer gender identities or transgenderism are
predominantly present in urban areas and amongst the elite sections of
society. They assert that variations in gender and sexual identity are largely
unknown to rural India and amongst the working classes. Nothing could be
further from the truth. While they may not use the words “homosexuality,”
“queer,” “lesbian,” “gay” or any other term which populates the lexicon of
English-speaking persons, they enter into unions with persons of the same
sex as them or with gender queer persons; these unions are often long-lasting,
and the couple performs a marriage ceremony. The incidence of queerness
amongst the rural and working-class communities has been documented
in academic scholarship as well as newspaper reports. In the absence of
evidence aliunde, the details narrated in newspaper reports are not facts
which are proved in terms of the Indian Evidence Act 1872.83 However, in
cases (such as the present one) which require this Court to examine social
phenomena and their incidence, newspaper reports serve as a useful tool in
the exercise of illuminating social realities.
86. This Court need look no further than the petitioners in this case to
illustrate the point that queerness is neither urban nor elite:
a. One of the petitioners grew up in Durgapur, West Bengal and
Delhi and states that she came to terms with her sexuality when

82 ibid
83 Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319
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she was an adult. Another petitioner in the same case grew up
in Varanasi, Uttar Pradesh and states that she knew that she was
a lesbian from a young age;
b. One of the petitioners hails from Muktsar, Punjab and happens
to be OBC. Another petitioner in the same case happens to be
Dalit. They come from working class backgrounds;
c. Another petitioner was born in Mumbai to Catholic parents. She
attempted to die by suicide and later had to beg on the streets in
order to survive;
d. Some petitioners before this Court are transgender persons
and activists. One of them is a public personality – Akkai
Padmashali. She hails from a non-English speaking, working
class background. At a young age, she left home. She worked
as an assistant in a shop selling ceramics but quit because she
unable to hide her true gender identity. Circumstance forced her
to become a sex worker to sustain herself. Later, she was awarded
the Karnataka Rajyotsava Award, Karnataka’s second highest
civilian award, for her contribution to social service.
e. Yet another petitioner who is a transgender person was born in a
family of farmers who grew coconuts and betel leaves. She later
worked in a factory. In her case, too, circumstance forced her to
become a sex worker. She is now a social activist; and
f. One of the petitioners is a lesbian who lives in Vadodara, Gujarat.
87. Ruth Vanita, an academician, studied the history of queer marriage
in India in her scholarly works. She narrates that she married a Jewish
woman in 2000 with both Hindu and Jewish ceremonies. 84 Her book titled
Love’s Rite: Same-Sex Marriage in India and the West85 records numerous
instances of queer unions and partnerships in India:

84 Ruth Vanita, ‘’Wedding of Two Souls”: Same-Sex Marriage and Hindu Traditions’
2004 Journal of Feminist Studies in Religion, Vol 20(2)
85 Ruth Vanita, Love’s Rite: Same-Sex Marriage in India and the West (Palgrave
Macmillan, 2005)
1298 SUPREME COURT REPORTS [2023] 16 S.C.R.

a. Two young women who were classmates fell in love. One of
them underwent a sex reassignment surgery in 1989. The two
then married each other but one of their fathers (a wireless
operator) opposed their union. He ﬁled a complaint stating that
the partner of his child had abducted her. When the young woman
was produced in court, she stated that she wished to live with
her husband. She was then released and the couple proceeded to
live together;
b. In 1993, two women in Faridabad married each other in a Banke
Bihari temple, with a priest oﬃciating;
c. Two men, one Indian and the other American, married according
to Hindu rites in a ceremony in New Delhi in 1993;
d. In 2004, a twenty-four year old Dalit woman and a twenty-two
year old Jat woman travelled to Delhi and performed the rites of
marriage in a temple. Their families opposed the union;
e. Two young women, whose parents were construction workers
in Bhopal, Madhya Pradesh, lived in a slum. One of them was
employed as a peon in a school and the other was unemployed.
They ran away in 2004 and are reported to have told the police
that they would live together regardless of any attempts to
separate them;
f. Also in 2004, a twenty-one year old Christian woman and a
twenty-three year old Hindu woman from a southern state in
India declared their life-long commitment to one another after a
tabloid alleged that they were lesbians;
g. Two young Muslim men (one aged twenty-two and the other
aged twenty-eight) married in Ghaziabad, Uttar Pradesh. Their
friends and family physically assaulted them for marrying but it
was reported that they continued to intend to live together; and
h. Two nurses in Patel Nagar, Delhi met as students, fell in love,
declared that they were life partners, and decided to live together.
At the time the book was written, they had shared a home for
ﬁfteen years. Their neighbours were aware of their relationship
and were unfazed by it.
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88. In addition, other sources record varied instances of persons
entering into atypical unions or expressing their homosexuality or gender
identity:
a. Two women who happened to be Adivasi married according to
the customs of their tribe, in a small village in Koraput district,
Orissa;86
b. A woman who was the daughter of a government school teacher
and a woman whose father was a labourer garlanded each other
in Hamirpur district, Uttar Pradesh and sought to register their
marriage at the local sub-registrar’s oﬃce. They each divorced
their husbands before entering into this union;87
c. Two women from Kanpur travelled to Delhi to marry each other;88
and
d. Young, gay men in a small town called Barasat in West Bengal
expressed their desire to be a part of the queer community. One
of them worked in a clerical job.89
89. The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti-
Discrimination Movement) released a citizen’s report on the status of
homosexuality in India, titled ‘Less Than Gay’ in 1991.90 The report discusses
some of the arguments which were put forth more than three decades ago.
In its attempt to address whether homosexuality is a ‘western’ concept or is
restricted to the socioeconomically privileged classes, it asserts that the queer
community is not a “coherent, easily deﬁnable group.”91 The report details
the various lived experiences of gay men and lesbian women, information
regarding which was collected by interviewing them. It tells the stories of

86 Satyanarayan Pattnaik, ‘Two Orissa girls defy norms, get married’ (Times of India, 5
November 2006)
87 India Today ‘UP: In love for 7 years, two women divorce husbands to marry each
other’ (India Today, 1 January 2019)
88 Deccan Herald ‘Two girls from Kanpur elope, ‘marry’ each other in Delhi’ (Deccan
Herald, 19 September 2015)
89 Paul Boyce and Rohit K Dasgupta, ‘Utopia or Elsewhere: Queer Modernities in Small
Town West Bengal’ in Tereza Kuldova and Mathew A Varghese (eds.), Urban Utopias
(Palgrave Macmillan, 2017)
90 AIDS Bhedbhav Virodhi Andolan, ‘Less Than Gay’ (1991)
91 ibid
1300 SUPREME COURT REPORTS [2023] 16 S.C.R.

a lesbian hostel warden, a gay teacher at a government polytechnic college
in Madhya Pradesh, an auto-rickshaw driver in Pune, two male municipal
sweepers in Mumbai who lived together and loved each other, and a gay
man from a slum in Delhi.92
90. Ruth Vanita also documents attempted suicides and suicides arising
from the diﬃculties faced by persons in queer relationships:93
a. In 1980, Jyotsna and Jayshree died by suicide after they jumped
in front of a train in Gujarat. In a letter they left behind, they
explained that they chose to die because they could not endure
having to live apart after their marriages to men;
b. Gita Darji and Kishori Shah died by hanging in a village in
Gujarat, in 1988. They were nurses and worked in a hospital; and
c. In January 2000, two young women named Bindu and Rajni
were stopped from eloping. A few days later, they jumped into
a granite quarry in Kerala and died. They each left behind notes
to their families in which they explained that they wished to die
because it was impossible for them to live together.
91. In Loving Women: Being Lesbian in Unprivileged India,94 Maya
Sharma gives an account of various persons (most of whom are women)
in same-sex or queer relationships. The book was written after detailed
interviews with its subjects, and focuses on working class persons. The
author explains that one of the purposes of the book was to:
“… dispel the myth that lesbians in India were all urban, Westernised
and came from the upper and middle classes.”
The author also highlights that public discourse has not created space
for the voices and experiences of persons from the LGBTQ community who
also belong to marginalized communities:
“… the lives of most of our subjects are equally distant and alienated
from upperclass, urban Indian as well as all Western representations of

92 ibid
93 Vanita (n 85)
94 Maya Sharma, Loving Women: Being Lesbian in Unprivileged India (Yoda Press,
2006)
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homosexuality, and their personal struggles, which cannot be separated
from their socioeconomic struggles and traditional contexts, are largely
unmirrored and therefore remain largely unknown.”
The book variously gives accounts of women in queer relationships
from diﬀerent religions and communities, hailing from diﬀerent parts of
the country. They or their family members worked as domestic workers,
factory workers, construction labourers, and Home Guards, amongst other
professions.
92. The discussion in this segment has not scratched the surface of the
rich history of the lives of LGBTQ persons in India, which continue into the
present. Yet, even the limited exploration of the literature and reportage on
the subject makes it abundantly clear that homosexuality or queerness is not
solely an urban concept, nor is it restricted to the upper classes or privileged
communities. The discussion in the preceding paragraphs reveals the diversity
of the queer population. People may be queer regardless of whether they are
from villages, small towns, or semi-urban and urban spaces. Similarly, they
may be queer regardless of their caste and economic location. It is not just
the English-speaking man with a white-collar job who lives in a metropolitan
city and is otherwise aﬄuent who can lay claim to being queer but also (and
equally) the woman who works in a farm in an agricultural community.
Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’
‘trans,’ etc. either because they speak languages which are not English or
for other reasons, but the fact remains that many Indians are gender queer or
enter into relationships with others of the same sex. In the words of a person
(assigned female at birth) who worked at a factory in Ajmer:
“You ask if I have heard the word “lesbian”. No, I have not heard it.
… I consider myself a male. I am attracted to women. Why create
categories, such deep diﬀerences between male and female? Only our
bodies make us diﬀerent. We are all human beings, aren’t we? … When
a human being is born, he does not know anything. He is told, “These
are your parents, sisters, father and brothers”. Similarly we are told,
“You are boys, and you are girls”. But I say I am a man. I choose to
be one. Despite our physical diﬀerences, we can be who we want to
be and do what we want to do. … But the ﬁnal analysis, we are all the
same, we are all human beings, we are all equal, regardless of what
1302 SUPREME COURT REPORTS [2023] 16 S.C.R.

kind of bodies we have. This common factor should be considered,
not the ways in which we are diﬀerent.”95
93. To imagine queer persons as existing only in urban and aﬄuent
spaces is to erase them even as they exist in other parts of the country. It
would also be a mistake to conﬂate the ‘urban’ with the ‘elite.’ This renders
invisible large segments of the population who live in urban spaces but are
poor or otherwise marginalized. Urban centres are themselves geographically
and socially divided along the lines of class, religion, and caste and not
all those who live in cities can be termed elite merely by virtue of their
residence in cities.
94. Finally, it is essential to recognize that expressions of queerness
may be more visible in urban centres for a variety of reasons. For one, cities
may aﬀord their inhabitants a degree of anonymity, which permit them to
live their true lives or express themselves freely. This may not always be
possible in smaller towns or villages, where the families or communities of
queer persons may subject them to censure and disapprobation, or worse. 96
The experiences of queer persons may also be more visible in urban spaces
because such persons have greater access to the various resources required
to make one’s voice heard. This only means that the marginalized are yet to
be heard when they speak and not that they do not exist. This is not to say
that society does not inﬂict violence upon the LGBTQ community in cities
but only to indicate potential reasons for their increased visibility in cities.
In conclusion, queerness is not urban or elite. Persons of any geographic
location or background may be queer.
c. The rise of Victorian morality in colonial India and the reasons for
the re-assertion of the queer identity
95. In pre-colonial times, the Indian subcontinent was home to a diverse
population with its own, unique understanding of sexuality, companionship,

95 ibid
96 For instance, many transmen migrate from villages to metropolitan cities to escape
violence and discrimination. Agaja Puthan Purayil, ‘“Families We Choose”: Kinship
Patterns among Migrant Transmen in Bangalore, India’ in Douglas A Vakoch (ed.),
Transgender India: Understanding Third Gender Identities and Experiences (Springer
2022)
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morality and love. Stories, history, myths, and cultural practices in India
indicate that what we now term ‘queerness’ was present in pre-colonial
India. It would not be a faithful description of the times to say that queerness
was “accepted” by the populace. Rather, society did not often view (many
manifestations of) the queer identity as something that required acceptance
to begin with because it formed a part of ordinary, day-to-day life, similar
to the heterosexual or cisgender identities. This was true for many parts of
the country at many points of time, though perhaps not everywhere and at
all times. This is not to suggest that society did not inﬂict any violence upon
members of the LBGTQ community in pre-colonial times. Rather, it is to
highlight that current beliefs, attitudes, and practices which are hostile to
the LGBTQ community are not necessarily natural successors of the past.
96. The native way of life gradually changed with the entry of the
British, who brought with them their own sense of morality. It was not
their morality alone that they brought with them but also their laws. This
Court discussed the legal legacy of the colonizers at length in National
Legal Services Authority (supra) and Navtej Singh Johar (supra). To
recapitulate, Section 377 of the IPC inter alia criminalized queer sexual
acts and in so doing, imposed the morality of the British on the Indian
cultural landscape. The British also enacted the Criminal Tribes Act
187197 to provide for the “registration, surveillance and control of certain
criminal tribes and eunuchs.”98 It permitted the government to declare a
group of persons a “criminal tribe” if it was of the opinion that the group
was “addicted to the systematic commission of non-bailable oﬀences.”99
Part II of the Criminal Tribes Act regulated transgender persons (which it
referred to as ‘eunuchs’) and subjected them to enormous indignity inter
alia by permitting the government to medically examine them, providing
for harsh penalties if they dressed “like a woman” or danced or played
music, preventing them from making gifts, and rendering their wills invalid.
Although the Criminal Tribes Act was repealed by the government after
independence, its underlying prejudices seem to continue in various central
and state enactments on ‘habitual oﬀenders.’

97 “Criminal Tribes Act”
98 Preamble, Criminal Tribes Act
99 Section 2, Criminal Tribes Act
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97. The criminalization of the LGBTQ community and their resultant
prosecution and conviction under these laws100 coupled with the violence
enabled by these laws drove large sections of the community underground
and into the proverbial closet. Society stigmatized any sexual orientation
which was not heterosexual and any gender identity which was not cisgender.
Persons with an atypical gender identity and / or sexual orientation were
therefore compelled to conceal their true selves from the world. Their
presence in the public sphere gradually shrunk even as homophobia and
transphobia ﬂourished. Despite their alienation from mainstream society,
many queer persons continued to live their lives in ways that were visible
to the public eye. Indeed, many of them (such as hijras) often did not have
a choice but to do so. Others expressed their sexual orientation only in the
comfort of their homes, in the presence of their families and friends. Yet
others led double lives – they pretended to be heterosexual in public and
while with their families and made their sexual orientation known to a select
few persons, who were often themselves of an atypical sexual orientation.
Some people entered into ‘lavender marriages’ or ‘front marriages’ which
are marriages of convenience meant to conceal the sexual orientation of
one or both partners.
98. It is evident that it is not queerness which is of foreign origin
but that many shades of prejudice in India are remnants of a colonial past.
Colonial laws and convictions engendered discriminatory attitudes which
continue into the present. Those who suggest that queerness is borrowed
from foreign soil point to the relatively recent increase in the expression of
queer identities as evidence of the fact that queerness is ‘new,’ ‘modern,’
or ‘borrowed.’ Persons who champion this view overlook two vital details.
The ﬁrst is that this recent visibility of queerness is not an assertion of an
entirely novel identity but the reassertion of an age-old one. The second
factor is that establishment of a democratic nation-state and the concomitant
nurturing of democratic systems and values over six decades has enabled
more queer persons to exercise their inherent rights. An environment has
been fostered which is conducive to queer persons expressing themselves

100 See, for instance, Queen Empress v. Khairati, ILR (1884) 6 All 204; (Meharban)
Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206; D P Minwalla v. Emperor, AIR
1935 Sind. 78.
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without the fear of opprobrium. This Court also recognizes that queer
persons have themselves been crucial in the project of fostering such an
environment. The constitutional guarantees of liberty and equality have
gradually been made available to an increasing number of people. This
seems to be true across the world – the global turn towards democracy has
created the conditions for the empowerment of queer people everywhere.
Progress has perhaps been inconsistent, non-linear, and at a less than ideal
pace but progress there has been. We must recognize the vital role of Indian
society in contributing to the evolving social mores. The evolution may at
times seem imperceptible, but surely it is.
d. Who is an Indian and what practices are Indian?
99. The tenor of the arguments put forth by some of the respondents
implied that a union between two persons of the same sex is not Indian. To
determine whether this contention is correct, it is necessary to query when
something or someone is ‘Indian.’ This question is all the more important
in a country as diverse as ours, with twenty-eight States, eight Union
Territories, a population of more than one billion persons, twenty-two
languages recognized by the Constitution and scores more which are spoken
by its people, at least eight religions, tribal and non-tribal populations, and
varying cultures which are sometimes at odds with one another.
A thing, an occurrence, or a practice is ‘Indian’ when it is present in
India, takes place here, or is practised by Indian citizens. Something which
is Indian could be present from time immemorial or it could be a recent
development. Regardless, this is not a game of numbers. The constitutional
guarantee certainly does not fade based on the level of acceptability that a
particular practice has achieved. Sexual and gender minorities are as Indian
as their fellow citizens who are cisgender and heterosexual.
iii. Understanding the institution of marriage
a. There is no universal conception of marriage
100. There is no universal definition of marriage. Marriage is
understood diﬀerently in law, in religion, and in culture. Some religions
consider marriage a sacrament while others consider it a contract. The
law deﬁnes the conditions for a valid marriage, such as the minimum age
required of a party to the marriage, whether both parties have consented
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to the marriage, or whether the parties are within the degrees of prohibited
relationship. A marriage is valid in the eyes of the law as long as the
preconditions in the concerned law(s) are satisﬁed. A precondition is diﬀerent
from a feature or characteristic in that the former is a prerequisite to a
valid marriage whereas the latter is not. The law provides remedies which
either party may avail of in the presence or absence of certain features or
characteristics. For example, Section 27 of the SMA provides that a party
to a marriage may present a petition for divorce on the ground that the other
party is undergoing a sentence of imprisonment for seven years or more for
an oﬀence as deﬁned in the IPC. However, it does not automatically render
a marriage void if one of the parties is imprisoned.
101. Once a couple marries, it is left to them to give meaning ang
content to their relationship. It is their prerogative to determine the
characteristics of their marriage and give meaning to their relationship.
These aspects of a marriage vary with each relationship, and it is impossible
for this Court to authoritatively state that a particular idea of marriage is
the only valid understanding of marriage. This being the case, any attempt
to formulate a general and universally applicable deﬁnition of marriage
is fraught with diﬃculty. With this qualiﬁcation, this Court will list some
features of marriage that are considered its core components.
102. Marriage is a voluntary union – of the mind, the body, and the
soul. Marriage signiﬁes a deep and abiding commitment to one another and
a devotion to the relationship. When two people marry, they intend to be in
a life-long relationship. Both the parties to the marriage provide emotional,
ﬁnancial, and spiritual support to the other. Each is an intellectual partner
of the other, as also a friend. Love, respect and companionship are said to
be the hallmarks of a successful marriage. Marriage is a gateway into the
creation of a family through childbearing and childrearing, although it is
not a precondition to the creation or existence of a family. The sole purpose
of marriage is not to facilitate sexual relations or procreation, although that
may be one of the main motivations for entering into a marriage. Marriage
has emotional and associational components to it, which cannot be relegated
to the background even as the sexual component is foregrounded. Important
as they are, sexual relations and procreation alone are not the exclusive
foundation for marriage. Although the aspects of marriage discussed in this
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paragraph are considered to be core components of marriage, the existence of
a valid marriage (by legal, religious, or cultural deﬁnitions) is not predicated
upon the existence of any of these elements. This may be due to choice or
circumstance or even some combination of the two.
103. A married couple may not have biological children because of
their age, problems with fertility, or simply because they choose not to. Many
couples who choose to have children may do so through assisted reproductive
technologies, surrogacy, adoption or other methods which are not traditional.
Many married couples may choose not to engage in sexual relations for
various reasons. In some marriages, the couple may not reside in the same
home or even city, temporarily or permanently. The emotional, ﬁnancial, or
spiritual contribution to a marriage may vary with each couple. While the
law identiﬁes certain conduct or behaviour as grounds for divorce they do
not render a marriage void in and of themselves. The marriage continues
to be a marriage, even if it is atypical or runs contrary to the notion of an
‘ideal marriage’ that a person may have. This is not only true for the legal
conception of marriage, but also of the cultural and social conceptions.
Society continues to consider a marriage to be a marriage even if, say, a
married couple decides to live apart because they work in diﬀerent cities
or countries or if they do not have children. This is equally true of the other
facets of marriage discussed in this paragraph. The exercise of deﬁning the
content of the institution of marriage as well as delineating its purpose is a
subjective exercise undertaken by the couple in question.
104. The respondents suggested that an ‘ideal marriage’ has many or
all of the components discussed in the preceding paragraphs. This argument
acknowledges that many of these components are not necessarily present
in the institution of marriage but places them in the realm of normative or
aspirational values. In other words, the argument is that marriages ought to
ﬁt with these components even if a given marriage does not ﬁt with them.
The answer to this argument is straightforward – there is no legal basis to
elevate these personals ideals to the status of normative requirements. To the
contrary, every eﬀort must be made to practice and inculcate constitutional
ideas – the ideals of human dignity, liberty, equality, and fraternity – in
our everyday lives. These constitutional ideals demand that we respect the
autonomy and dignity of each person. We must respect their decisions and
1308 SUPREME COURT REPORTS [2023] 16 S.C.R.

choices. It is only when a particular decision or action is contrary to the
law or an aﬀront to constitutional values that this Court may step in. In all
other instances, citizens are empowered to deﬁne the content of their lives
and ﬁnd meaning in their relationships.
105. Diﬀerent religions may have diﬀerent understandings of marriage,
for instance, whether marriage is a sacrament or a contract. There may
be diverse social constructs of marriage within a religious grouping.
Similarly, there may be diﬀerent conceptions of marriage within a particular
community. This is best understood with the aid of an example. Section
5(iv) of the HMA stipulates that a marriage may be solemnised between
two persons if they are not within the degrees of prohibited relationship,
unless a custom or usage governing the parties permits their marriage. One
of the degrees of prohibited relationship is an uncle and his niece.101 In many
communities, an uncle cannot marry his niece because the community does
not have a custom or usage which permits such a marriage. Yet, in many
other communities such a marriage is customary and therefore permitted
in terms of the HMA. The customs of many tribes of the country similarly
permit an uncle to marry his niece. Many tribal communities are governed
by their own customs and usages. Such marriages are valid and recognised
by tribal customs although they are not recognised by the law governing
other communities in the country. The solemnisation of a marriage, too,
takes diﬀerent forms in diﬀerent communities. What may be customary,
and therefore not only accepted but encouraged in a particular religion or
community may not have a parallel in another religion or community.
106. While each individual is entitled to their own conception of
marriage, a universal conception of marriage, its purpose, and content would
be diﬃcult to encapsulate in an exhaustive enumeration. Consequently, the
argument advanced by the respondents that the very conception of marriage
does not permit queer individuals to marry cannot be accepted. Each religion,
each community, each couple deﬁnes the institution of marriage for itself.
The queer community is just as much a community as any other, though
perhaps not in the traditional sense in which the term is used with respect
to customs which govern marriage.

101 Section 3(g)(iv), HMA
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107. There is no gainsaying the fact that procreation and the human
desire to have a family constitute signiﬁcant characteristics of the institution
of marriage. Yet, even heterosexual couples may ﬁnd themselves unable or
unwilling to procreate. Age, health and a variety of circumstances may bear
on the decision of a heterosexual couple to bear or not to bear children. The
inability of queer couples to procreate does not act as a barrier to the entry
of queer persons to the institution of marriage just as it does not prevent
heterosexual couples who are unable or choose not to procreate. Viewing
marriage solely through the lens of sexual relations or procreation is a
disservice to married couples everywhere including heterosexual couples
because it renders invisible the myriad other aspects of a marriage as an
emotional union. It relegates the aspects of companionship and love in a
marriage to an inferior status. Such a conception of marriage is narrow and
factually incorrect.
b. The conception of marriage is not static
108. The understanding of marriage – socially, culturally, and legally
– has undergone a sea change over time. Some changes which are speciﬁc
to India are discussed in this segment. This segment is not an exhaustive
discussion of the changes to the institution of marriage in India. It illustrates
some changes in service of the point that the conception of marriage is not
static.
I. Sati
109. Although far from a universal practice, sati was once permitted
and practiced in India. This abhorrent practice was inextricably intertwined
with the institution of marriage because a widow was either tied to the
funeral pyre of her deceased husband or pressed upon to jump into it.
Various rules and regulations restricted and later, barred the practice in the
colonial era. In modern day India, the Commission of Sati (Prevention) Act
1987 criminalizes attempts to commit sati, the abetment of sati, as well as
its gloriﬁcation.
II. Widow remarriage
110. In accordance with long-standing custom, women (mostly from
the dominant castes) were not permitted to remarry if their husbands
died. In many communities, the heads of widows were shaved and they
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were prohibited from wearing jewellery or colourful clothes. This was
considered a ‘living death.’ Many (including Mahatma Jyotirao Phule,
the Brahmo Samaj, Ishwar Chandra Vidyasagar, and Tarabai Shinde)
attempted to reform the institution of marriage to permit widows to
remarry. Civil society oﬀered tremendous resistance to their attempts
at reform.102 Ultimately, the Hindu Widows’ Remarriage Act 1856 was
enacted, permitting widows to remarry.
III. Child marriage and the age of consent
111. A discussion of the history of marriage in India would be
incomplete without reference to child marriage and the legal age of consent.
Child marriage was widespread in most religions and communities. The
age of consent for girls was ﬁxed at ten years in 1860. In 1890, a thirty-ﬁve
year old man called Hari Mohan Maity caused the death of his ten year
old wife Phulmoni Das (also known as Phulomonee Das) through violent
sexual intercourse with her. While this would be considered rape and / or
aggravated penetrative sexual assault of a child by prevailing legal standards,
the concerned court ruled that Hari Mohan Maity had a legal right to engage
in sexual relations with Phulmoni Das because she was above the age of
consent at the time.103 The age of consent for girls was then raised to twelve.
112. Decades later, the Child Marriage Restraint Act 1929 raised the
minimum age of marriage for girls from twelve to fourteen. In 1949, the
criminal law of the country stipulated that the age of consent for girls was
ﬁfteen years. The HMA set the minimum age of marriage at ﬁfteen for
girls and eighteen for boys. In 1978, the HMA was amended to raise the
minimum age of marriage to eighteen for girls and twenty-one for boys.
The Prohibition of Child Marriage Act 2006 provided that child marriages
would be voidable at the option of the contracting party who was a child
at the time of the marriage. Further, this statute criminalizes the act of
performing, conducting, directing, abetting, promoting or permitting a
child marriage.

102 Rosalind O’Hanlon, Issues of Widowhood in Colonial Western India (Institute of
Commonwealth Studies, University of London, 1989)
103 Flavia Agnes ‘Controversy over Age of Consent’ (2013) EPW Vol 48(29)
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113. The Protection of Children from Sexual Oﬀences Act 2012104 was
enacted about a decade ago. It is a child-speciﬁc legislation which inter alia
criminalizes sexual abuse in its various forms. A “child” is deﬁned as any
person below the age of eighteen years. In Independent Thought v. Union
of India,105 this Court was confronted with the inconsistency between the
POCSO Act which criminalized sexual relations with a child and Exception
2 to Section 375 of the IPC which provided that sexual intercourse by a man
with his wife was not rape if the wife was above ﬁfteen years of age. As a
consequence of this inconsistency, a person could have been guilty under
the POCSO Act but not under Section 375 of the IPC. This Court held that
Exception 2 was violative of Articles 14, 15 and 21 of the Constitution and
was an aﬀront to constitutional morality. The Court read down Exception
2 as exempting a man from the oﬀence of rape if his wife was above the
age of eighteen. Currently, it is a punishable oﬀence for a man to have
sexual intercourse with a child, regardless of whether that child is his wife.
It is evident that the law governing marriage has come a long way from
Phulmoni Das’ time.
IV. Other violence in marriage
114. Acts which were once considered the norm in a marriage are no
longer countenanced by the law. The giving and taking of dowry, which was
and continues to be prevalent in most communities, was criminalised by the
enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there
was no penalty in law for demanding, giving, or accepting dowry. The family
of the bride was often expected to pay large sums of money or present “gift”
items of value to the groom or his family, as a condition of the marriage.
The maternal families of innumerable women are harassed and violence is
inﬂicted upon them, in relation to demands for dowry. Parliament inserted
Section 498-A of the IPC in 1983. Section 498-A criminalizes the act of a
husband or his relative subjecting her to cruelty, as deﬁned in the section.
In many cases, the matrimonial families (the husband, the mother-in-law,
the father-in-law, and other relatives) murdered the woman because of what
they viewed as insuﬃcient dowry or unmet demands for dowry. This led

104 “POCSO Act”
105 (2017) 10 SCC 800
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to Parliament amending the IPC in 1986 to include Section 304-B which
criminalises ‘dowry death.’
115. These provisions of law did not, however, adequately account
for gender-based violence in a marriage which are unconnected to dowry.
Domestic violence was (and continues to be) prevalent. About two decades
ago, the Protection of Women from Domestic Violence Act 2005 was enacted
to protect the rights of women who were survivors or victims of domestic
violence, either by their husbands or the relatives of their husbands. Prior
to the enactment of the law, intimate partner violence which women are
generally subject to was not criminalized.
V. Inter-caste and interfaith marriage
116. Inter-caste and interfaith marriages were uncommon in the colonial
era and established customs or usages did not govern such marriages. Then,
as now, society subjected those who entered into inter-caste and interfaith
marriages to discrimination and violence. There was initially no legal
framework in place which governed such marriages. The Special Marriage
Act 1872 was enacted to enable the solemnisation of marriages independent
of personal law. If two people belonging to diﬀerent religions wished to
marry, they were each required to renounce their respective religion in order
to avail of its provisions. The law at the time did not supply a framework
in terms of which two persons belonging to diﬀerent religions could retain
their association or spiritual connection to their respective religions and
still marry one another.
117. Parliament was conscious of the limiting and restrictive character
of the Special Marriage Act 1872 and enacted the SMA in 1954, which
was a more permissive legislation in that any two persons could marry,
without having to repudiate their respective religions. By stipulating that “a
marriage between any two persons may be solemnized under this Act,”106 the
SMA also set out a mechanism for inter-caste marriages to be solemnized
independent of personal law.
118. The families or relatives of couples who entered into inter-caste
or interfaith marriages would frequently inﬂict violence upon them, even

106 Section 4, SMA
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to the extent of brutally murdering them. Their communities would either
ordain or participate in these atrocities. Such murders are colloquially
referred to as “honour killings” and are more accurately termed as caste-
based murders. It is a most unfortunate truth that this culture of violence
persists to date. Couples who face this opprobrium have knocked on the
doors of this Court inter alia seeking protection from their families and
others who oppose their relationship107 and this Court has otherwise been
seized of cases arising from violence in this context. 108 In Shakti Vahini v.
Union of India,109 this Court took note of the violence against couples in
inter-caste and interfaith marriages. It directed the state machinery to take
preventive as well as remedial measures to protect such couples who wished
to marry or who were recently married.
119. It is beyond dispute that couples in inter-caste and interfaith
relationships have historically been forced to contend with and continue
to contend with enormous diﬃculty while solemnizing their unions. As
evident from the discussion in the preceding paragraph, large sections of
society were and are ﬁercely opposed to such marriages. The opposition
stems, at least in part, from a belief that a marriage ought to consist of
two individuals from the same religion or caste. Parliament chose to
enact the SMA despite the opposition to atypical marriages and has not
chosen to repeal the SMA or otherwise exclude the celebration of inter-
caste marriages under personal laws despite continuing hostility from
the communities of such couples. Parliament has presumably done so
because it is cognizant of the fact that the exercise of fundamental rights
is not contingent upon the approval of the community. Similarly, this
Court has carried out the constitutional mandate by protecting the rights
of individuals and couples in the face of considerable opposition from
their families. In a democracy, certain rights inhere in all individuals.
If the exercise of rights was contingent upon everyone else or, at least a
substantial portion of the community approving of such exercise, we would
be doing a disservice to a constitutional democracy. The Constitution does

107 See, for instance, Lata Singh v. State of U.P., (2006) 5 SCC 475.
108 See, for instance, Gang-Rape Ordered by Village Kangaroo Court in W.B., In re,
(2014) 4 SCC 786; Vikas Yadav v. State of U.P., (2016) 9 SCC 541.
109 (2018) 7 SCC 192
1314 SUPREME COURT REPORTS [2023] 16 S.C.R.

not require individuals to ﬁrst convince others of the legitimacy of the
exercise of constitutional rights before they exercise them.
VI. Divorce
120. Section 10 of the Indian Divorce Act 1869, which is applicable
to Christians, previously permitted the husband to ﬁle a petition for divorce
on the ground that his wife was guilty of adultery. However, the wife was
permitted to ﬁle a petition for divorce on the ground that her husband was
guilty of adultery only in conjunction with certain other grounds (such as
conversion to another religion or bigamy). In Mary Sonia Zachariah v.
Union of India,110 the Kerala High Court inter alia struck down a part of
Section 10 and permitted Christian women to seek divorce on the ground of
adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001 by
substituting Section 10 with a provision that made various grounds of divorce
(including adultery) available to both the husband and the wife, equally. 111
It also introduced Section 10A, which permitted Christian marriages to be
dissolved by mutual consent, for the ﬁrst time.
121. In terms of Hindu customary law, certain communities permitted
divorce whereas others did not. The HMA extended the right of divorce to all
Hindus when it was enacted in 1955. In 1976, Section 13B was introduced in
the HMA, permitting Hindus to dissolve their marriage by mutual consent,
for the ﬁrst time. In Shilpa Sailesh v. Varun Sreenivasan,112 this Court
held that it has the authority to grant divorce when there is a complete and
irretrievable breakdown of marriage notwithstanding the opposition of one
of the parties to the marriage to its dissolution.
122. Islamic customary law permitted divorce in certain situations and
through certain modes. One of the modes was talaq-e-biddat or triple talaq
by which the husband could instantly, irrevocably, and unilaterally divorce
his wife. In Shayara Bano v. Union of India,113 this Court held that the

110 1995 SCC OnLine Ker 288
111 The wife was permitted an additional ground of divorce, viz “the husband has, since
the solemnization of the marriage, been guilty of rape, sodomy or bestiality.” See
Section 10(2), Indian Divorce Act 1869.
112 2023 SCC OnLine SC 544
113 (2017) 9 SCC 1
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practice of severing the marital bond through the mode of talaq-e-biddat
was unconstitutional.
VII. The implications of the discussion in this segment
123. Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita
Ramabai, Tarabai Shinde, Raja Ram Mohun Roy and countless others
voiced their opposition (to varying degrees and to varying eﬀects) to one
or the other practice discussed in this segment. Their views were met with
ﬁerce opposition on the ground that the religious and cultural values of the
subcontinent did not permit a departure from tradition. In some cases, the
opposing groups relied on scriptures to justify their respective stances.114
When Dr. B R Ambedkar introduced the Hindu Code Bill, many opposed the
provision for divorce on the ground that the Hindu religion did not envisage
divorce because it was a sacrament.115 It is seen that there are competing
understandings of the institution of marriage at every stage of its evolution.
Yet, the understanding which was grounded in justice and the rights of the
people has prevailed. Injustice in the law in relation to the institution of
marriage (in the form of demands for dowry, dowry death, or child sexual
abuse) or as incidental to the institution (as in the case of sati or widow
remarriage) is slowly but surely in the process of being eradicated. While
these practices were once permitted and encouraged, they are currently not
only frowned upon but also criminalized.
124. This walk through history is not an attempt by this Court to take
on the mantle of historians. The discussion demonstrates that the institution
of marriage has not remained static or stagnant. To the contrary, it is change
which characterizes the institution. All social institutions transmogrify
with time and marriage is no exception. From sati and widow remarriage
to child marriage and inter-caste or interfaith marriages, marriage has
metamorphosed. The institution as we know it today would perhaps be
unrecognizable to our ancestors from two hundred years ago. Despite

114 ‘Social Reform’ and the Women’s Quest in Janaki Nair (ed), Women and Law in
Colonial India: A social history (1996)
115 See, for instance, Constituent Assembly of India (Legislative) Debates, Volume II,
Speech by Pandit Lakshmi Kanta Maitra on 1 March 1949; Constituent Assembly
of India (Legislative) Debates, Volume VI, Speech by Pandit Mukut Bihari Lal
Bhargava on 12 December 1949
1316 SUPREME COURT REPORTS [2023] 16 S.C.R.

vehement opposition to any departure from practice, the institution of
marriage has changed. This is an incontrovertible truth. Here, it is also
important to take note of the fact that these changes were brought about
largely by acts of Parliament or the legislatures of the states. While the
passage of many laws was preceded by signiﬁcant social activism, it was
the legislature which ultimately responded to the call for change. Even as
Parliament (and in some cases, the courts) expand the liberties of the people
to conduct their lives in a manner they see ﬁt (in accordance with law),
many sections of society remain opposed to these changes. Regardless of
such opposition, the institution of marriage has undergone a sea change.
It is therefore incorrect to characterise marriage as a static, stagnant or
unchanging institution.
c. The implications of this discussion for the right of queer persons
to marry
125. From the discussion in this segment of the judgment, it is evident
that the institution of marriage is built and re-built by societies, communities,
and individuals. A universal conception of marriage is not present nor is the
conception of marriage static over time. The only facet of marriage which
is constant across religion, community, caste, and region is that the couple
is in a legally binding relationship – one which recognizes an emotional
bond of togetherness, loyalty and commitment - that is recognised by the
law. The law recognises the commitment that the couple has for one another
by regulating the institution of marriage and conferring certain rights and
privileges on them.
126. In Shaﬁn Jahan (supra), a three-Judge Bench of this Court held:
“84. … Our choices are respected because they are ours. Social approval
for intimate personal decisions is not the basis for recognising them.
Indeed, the Constitution protects personal liberty from disapproving
audiences.”
127. The consequence of the judgment of this Court in National
Legal Services Authority (supra) and Navtej Singh Johar (supra) is that
the members of the queer community are no longer second-class citizens
of our country. Their individual and group rights are on par with any other
citizen of this country. Their gender identity or sexual orientation cannot
be a ground on which they are discriminated against.
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128. Mr. Tushar Mehta, the learned Solicitor General, submitted during
the course of his arguments that two persons from the LGBTQ community
have the right and the liberty to celebrate their union and label the union
with any term they see ﬁt, including ‘marriage.’ The Union of India does not,
however, wish to accord legal recognition to such ceremonies and unions.
If the marriages of queer people were to be recognized by law enacted by
Parliament, it would be the next step in its progression.
iv. The signiﬁcance of marriage as a socio-legal institution
129. One of us (DY Chandrachud, J.) in Navtej (supra) held that the
members of the LGBTQIA+ community have a right to navigate public
spaces without the interference of the State. The claim of the petitioners in
this case, however, is on a slightly diﬀerent footing. The petitioners seek
the active involvement of the State in their relationships through conferring
recognition. Through marriage, the State confers legal recognition to a
relationship between two heterosexual persons. By doing so, it recognises
that relationships in the form of marriage are not merely a lifestyle but
an important constituent unit for the sustenance of social life. The State
confers innumerable beneﬁts, both tangible and intangible, to a family
unit constituted by marriage. The petitioners seek that the State grant legal
recognition to the relationship between non-heterosexual persons in the
form of marriage because they are otherwise excluded from the express and
implied beneﬁts of marriage. They claim that non-heterosexual unions have
not been able to attain social sanctity because their relationship is invisible
in the eyes of the law.
130. Before we discuss the State’s interest in regulating the personal
relationship between two persons to understand the necessity of its
interference in the private sphere, it is important to discuss the manner in
which the State regulates marriages.
131. The State: ﬁrstly, prescribes conditions with respect to who can
enter into a valid marriage; secondly, regulates the marital relationship during
its sustenance; and thirdly, regulates the repercussions of the breakdown of
a relationship of marriage.
132. The State prescribes various conditions for the solemnization
of a valid marriage which inter alia includes the conditions of consent, a
1318 SUPREME COURT REPORTS [2023] 16 S.C.R.

minimum age requirement, and whether the parties are within the degrees
of prohibited relationship. The law regulates the conduct of the parties to
a marriage in numerous ways. For example, the law penalises the husband
and his family members if they treat the wife cruelly, including demands for
dowry.116 Similarly, the Protection of Women from Domestic Violence Act
2005117 penalises persons for domestic violence in the course of a domestic
relationship which has been deﬁned to include marriage.118 The grounds
for divorce prescribed in various marriage laws also regulate the conduct
of parties because their actions during the sustenance of a marriage may be
a ground for the legal dissolution of that marriage. The valid grounds for
divorce include where one of the parties has a sexual relationship outside of
marriage,119 or has deserted their spouse,120 or treats the spouse with cruelty.121
The State regulates the relationship between the parties after the divorce
by prescribing the payment of maintenance. Under the SMA, the wife can
claim alimony or maintenance and under the HMA, both the husband and
the wife can claim maintenance. The above discussion elucidates that the
State plays a crucial role in regulating marriage. Marriage has attained both
social and legal signiﬁcance because of the active involvement of the State
at every stage of the marital relationship – during entry into it, during its
subsistence, and in its aftermath.
133. Marriage was earlier a purely social institution unregulated by
the State. What prompted the State to regulate personal relationships? There
are two prominent reasons. The ﬁrst reason was to regulate the social order.
The State regulated social order by ﬁrstly, regulating the sexual conduct of
persons through marriage, and secondly, by prescribing a legal mechanism
for the devolution of property based on the legitimacy of the heir.
134. With respect to the ﬁrst of the reasons, the State used marriage
as a tool to regulate sexual behaviour.122 The State prescribed social rules

116 Section 498A of IPC
117 “DV Act”
118 Sections 2(f) and 3 of the DV Act,
119 Section 27(1)(a) of the SMA
120 Section 27(1)(b) of the SMA
121 Section 27(1)(d) of the SMA
122 Laurence Drew, Sex, ‘Procreation and the State Interest in Marriage, (2002)
Columbia Law Review, Vol. 102(4)
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through the vehicle of law by devising marriage as an exclusive relationship.
Engaging in sexual conduct outside of marriage is a ground for divorce
under personal marriage laws and the civil marriage law. It is also crucial to
note that impotency and not sterility is a ground for divorce.123 Impotency
is the inability of a man to engage in sexual intercourse. On the other hand,
sterility is the inability of a man or a woman to procreate. By prescribing
impotency as a ground for declaring a marriage void (and not sterility), the
State emphasised the centrality of sexual relations in a marriage as opposed
to procreation. In this way, the State governs the conduct of society by
regulating sexual conduct in a marital relationship.
135. Another manner in which the State intended to regulate social
order by regulating marriage is by placing marriage at the centre of property
devolutions. Ownership and control over property was viewed as being
important for the establishment of a just social order. One of the reasons for
the establishment of a social contract for the creation of a State by which
individuals gave up their right to live as unregulated free individuals in
exchange of protection of their rights and freedom is for safeguarding of
property rights.
136. There must be rules for the devolution of property to avoid
conﬂicts. These rules may vary in nature. Societies may establish rules for a
common property system, or private property system, or a mixture of both.
These legal rules have two primary components which concern how the
title over the property is secured and how the title further devolves in case
of intestate succession. Legal rules for the devolution of title are premised
on marriage in modern societies.
137. Brian H Bix in the paper “State interest and Marriage” argues
that there is suﬃcient material to establish that the State regulates marriage
to respond to the special interests of speciﬁc social groups.124 It has been
argued that the propertied classes wanted to reduce any uncertainty about
succession, which may have arisen because of a lack of clarity regarding
the line of succession. It has also been argued that noble families desired

123 Section 27(1)(ii) of the SMA
124 Brian H Bix, State Interest and Marriage- The Theoretical perspective, (2003) 32
HOFSTRA L. REV. 93
1320 SUPREME COURT REPORTS [2023] 16 S.C.R.

to prevent their children’s marriages with partners of lower social status.
Irrespective of whether the State regulated marriage to further entrench
the existing social order or to transform the existing social order based on
constitutional values, it is clear that property also plays a prominent role in
the regulation of marriage.
138. The second reason for the State to be involved in the regulation of
personal relationships was to remodel society, premised on the constitutional
value of equality. A constitutional order premised on equality, dignity,
and autonomy would be unworkable if personal relationships which
are the building blocks of a just society are grounded on values that are
antithetical to the Constitution. The Constitution declares that there shall
be no discrimination on the grounds of religion, race, caste, and sex. How
would it be a just society if on the one hand the Constitution declares that
there shall be no discrimination, and on the other hand, inter-faith and inter-
caste relationships bear the brunt of a brutal society through ostracization
and “honour” killings or caste-based murders? How just would society
really be if in spite of the constitutional guarantees of equality of women
in public posts and educational institutions, they suﬀer patriarchal attitudes
in the private sphere?
139. The State regulates marriage to create a space of equal living
where neither caste, religion, and sex prevent any person from forming bonds
for eternity nor do they contribute to the creation of an unequal relationship.
The State’s regulation of marriage recognised that even though a married
couple is a ‘unit’ for the purposes of laws, they still retain their individual
identity and are entitled to constitutional guarantees. For example, one of
the parties need not necessarily be at fault for the couple to secure divorce.
Our laws recognise divorce by mutual consent. They recognise that the
parties to a marriage are in the best position to decide if they should continue
with the marital relationship. Divorce by mutual consent is grounded on
the principle of autonomy. The involvement of the State in the regulation
of marriage opened up the space for inter-caste marriages and inter-faith
marriages, and secured prominent constitutional rights.
140. The regulation by the State and its attempts to create a more equal
personal sphere also contribute towards factual equality where women are
empowered to defy patriarchal notions of gender roles in daily life. The
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impact of the State’s involvement in creating a more just personal space by
reforming the institution of marriage on the basis of constitutional ideals
can be seen when a wife chooses to retain her surname after her marriage
or where the partners equally contribute towards raising their child.
141. The State recognised that a Constitution which upholds the values
of freedom, liberty, and equality cannot permit the sustenance of a feudal
institution undermining the rights of marginalised communities. Thus, it is
important to view the involvement of the State in regulating the institution
of marriage in terms of its transformative potential in ensuring equality in
the personal sphere and in family life.
142. Having discussed why and how the State regulates the institution
of marriage, it is important that this Court recognise the eﬀect of such
regulation. Apart from the beneﬁts of the State’s involvement which are
recognised above (that is, in creating a social order in consonance with the
principles laid down in the Constitution), there are other beneﬁts. These
beneﬁts can be segregated into tangible and intangible beneﬁts.
143. The intangible beneﬁts of marriage are guided by hidden law.
Hidden law comprises of norms and conventions which organize social
expectations and regulate everyday behaviour.125 The beneﬁts which are
conferred by a legal institution must not be measured solely in terms of the
beneﬁts which are conferred by the law. It must also include the beneﬁts
which are conferred by hidden law. These are beneﬁts which are not traceable
to law but which are created by norms. One such beneﬁt of marriage which is
traceable to hidden law is the social validity and recognition which marriage
as an institution confers upon relationships.
144. It is pertinent to note that the State only regulates heterosexual
marriages. The law confers numerous rights and beneﬁts which ﬂow from
a marriage but ignores the existence of any other form of relationship. The
invisibilization of relationships which are not in the form of marriage on
the one hand bestows sanctity and commitment to marriages and on the
other hand strengthens the perception that any other form of relationship is
ﬂeeting and non-committal.

125 Jonathan Rauch, ‘Conventional Wisdom’, (Reasons, February 2000)
1322 SUPREME COURT REPORTS [2023] 16 S.C.R.

145. The DV Act has come the closest to recognising the existence
of relationships in forms other than marriage. The Act deﬁnes “domestic
relationship” as a relationship between two persons who live together in
a shared household, when they are related by consanguinity, marriage, or
‘through a relationship in the nature of marriage. In Indra Sarma v. VKV
Sarma126, the issue before this Court was whether live-in relationships can
be considered to be a relationship in the nature of marriage. A two-Judge
Bench of this Court observed that a relationship in the nature of marriage
is distinct from a marriage. It was further observed that for a relationship to
be considered to be in the nature of marriage, factors such as the duration of
the relationship, whether the couple live in a shared household, the pooling
of resources and ﬁnancial arrangements such as long-term investment plans
which indicate the existence of a long standing relationship, and domestic
arrangements such as entrusting the responsibility especially on women
to run the household and do household activities, the sexual relationship,
procreation, socialisation in public, and the intention and conduct of the
parties must be considered.
146. The observations of this Court in Indra Sarma (supra) elucidate
that a relationship is in the nature of marriage only when an inference can
be drawn from the surrounding circumstances that it will be a long-lasting
relationship. Thus, while there is a positive presumption that marriages are
long-lasting, there is also a negative inference that all other relationships
which are not in the form of marriage are short-lived.
147. In addition, the observations of this Court in Indra Sarma (supra)
indicate that marriage has always been understood and continues to be
understood in terms of the stereotyped traditional gender roles. The wife
is entrusted with the responsibility of taking care of household chores and
the husband is expected to be the breadwinner of the family. The public-
private divide is stark. Women are relegated to the private sphere where
their contribution towards running the household is diminished. An inherent
feature of the institution of marriage is the unequal heteronormative setting
in which it operates. It is important for us to observe that the State while
recognising the relationship between two heterosexual individuals in the

126 (2013) 15 SCC 755
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form of marriage does not recognise or promote the gendered division of
labour in the home. The State by regulating marriage has sought to redeﬁne
heterosexual relationships by emphasising on the autonomy of both parties.
148. The intangible beneﬁts of marriage extend beyond the conferment
of social recognition to the relationship of the couple. It also confers beneﬁts
which cannot be measured in tangible form to the children born of the marital
relationship. The law confers on children who are born of wedlock with
beneﬁts in succession. In addition, the law’s recognition of the concepts
of legitimate and illegitimate children have social repercussions in that
illegitimate children are shunned by the society. These intangible beneﬁts
of marriage indicate that society regards marriage as the primary and sole
unit through which familial relationships can be forged. As Marshall CJ
observed in Goodridge v. Department of Public Health,127 in a very real
sense, there are three partners in a civil marriage: two willing partners and
an approving State.
149. There are numerous tangible beneﬁts conferred by the State which
ﬂow from marriage and touch upon every aspect of life. Tangible beneﬁts
conferred by marriage can be classiﬁed into (i) matrimonial and child care
related beneﬁts; (ii) property beneﬁts; (iii) monetary beneﬁts; (iv) evidentiary
privilege; (v) civic beneﬁts; and (vi) miscellaneous beneﬁts.
150. Matrimonial and child care related beneﬁts include the provisions
of permanent alimony and maintenance, 128 maintenance if a person with
suﬃcient means refuses to maintain his wife129, to adopt a child as a couple130,

127 798 N.E.2d 941 (Mass. 20003)
128 Section 25 of the Hindu Marriage Act 1955; Section 37 of Special Marriage Act
1954 stipulates that the court can direct the husband to pay maintenance to his wife;
Section 40 of the Parsi Marriage and Divorce Act 1936; Section 37 of the Divorce
Act 1869 where the District Court is conferred with the power to secure maintenance
to the wife from the husband.
129 Section 125 of CrPC
130 Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015
prescribes eligibility criteria for the adoption of children. The provision stipulates
that if a couple wants to adopt, then the consent of both the spouses are required.
However, the sub-section (5) of the provision states that any other criteria speciﬁed
in the adoption regulations frame Authority shall be followed. Clause 5(3) of the
Adoption Regulations dated 23.9.2022 (G.S.R. 726(E)) notiﬁed by the Ministry of
Women and Child Development in exercise of powers conferred under Section 68(c)
1324 SUPREME COURT REPORTS [2023] 16 S.C.R.

and to avail rights related to surrogacy131. Property beneﬁts would include
securing a share in case of intestate succession132. Legislation such as Section
16 of the HMA has conferred legitimacy on children born from void or
voidable marriages with a consequential right to or in the property of the
parents (and not of any other person). Monetary or ﬁnancial beneﬁts which
ﬂow from marriage include the provisions to be nominated for the payment
of gratuity133, to receive funeral expenditure for the deceased spouse, 134 for
the payment of medical beneﬁts to the spouse of the insured person,135 and to
claim provident fund as the dependent of a deceased spouse.136 Additionally,
the provisions of the Income Tax Act 1961 provide numerous tax beneﬁts
for payments made on behalf of the spouse. For example, Section 80C of
the Income Tax Act 1961 permits deduction of the insurance premia paid
for the spouse’s life insurance policy and Section 80D permits deduction of
expenses towards the premium of spouses health insurance.
151. Evidentiary privilege includes the privilege accorded to
communications during marriage under the Indian Evidence Act 1872 137.
Civic beneﬁts include the provision to apply for citizenship or to be

read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act
2014 prescribes that a child shall be given in adoption only if they have been in a
stable two year marital relationship.
131 Section 2(e) of the Assisted Reproductive Technology (Regulation) Act 2021 deﬁnes
a commissioning couple as an infertile married couple who approach an assisted
reproductive technology clinic or bank for services; Section 4(c)(II) of the Surrogacy
(Regulation) Act 2021 stipulates that the eligibility condition for an intending couple
to avail the services of surrogacy is that the intending couple must be married and
between the age of 23 to 50 years in case of female and 26 to 55 in case of a male.
132 Hindu Succession Act 1956 and the Indian Succession Act 1925.
133 Section 55 of the Code of Social Security 2020 provides that each employee who
has completed one year of service shall nominate from his family for the payment of
gratuity. Section 55(3) states that any nomination made by the employee in favour of
a person who is not a member of his family shall be void.
134 Section 32 of the Code of Social Security 2020 stipulates that the eldest surviving
member of the family (which has been deﬁned to include spouse) of an insured
person shall receive payment towards the expenditure on the funeral.
135 Sections 32 and 39 of the Code of Social Security 2020
136 Section 2(c ) of the Provident Funds Act 1925 deﬁnes a dependent to include a wife
or a husband. Section 3 of the Act stipulates that the sum standing to the credit of any
subscriber shall be paid to any dependent.
137 Section 122 of the Indian Evidence Act 1872 states that no person who is or has been
married shall be compelled to disclose any communication made during marriage.
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an overseas citizen of India by virtue of the spouse’s citizenship138.
Miscellaneous beneﬁts include other beneﬁts under law which cannot be
grouped under the above categories which inter alia includes the recognition
of a spouse as a ‘near relative’ for the purpose of the Transplantation of
Human Organs and Tissues Act 1994139.
152. At this juncture, it is important to recall the submission made
by the learned Solicitor General that even today, as the law exists, there
is no prohibition against two queer persons holding a marriage ceremony.
However, they would not be recognised as married partners by State and
non-State entities for the purposes of the law. The non-recognition of non-
heterosexual marriages denies the petitioners the social and material beneﬁts
which ﬂow from marriage which captures the true essence of marriage.
Access to the institution of marriage is crucial to “individual self-deﬁnition,
autonomy, and the pursuit of happiness”140 because of these expressive and
material beneﬁts which ﬂow from marriage.
v. The nature of fundamental rights: positive and negative postulates
153. Before we embark on an analysis of whether the Constitution
recognises the right to marry, it is imperative that we discuss how the courts
recognise unenumerated rights or derivative rights. The Ninth Amendment
to the US Constitution states that the “enumeration in the Constitution of
certain rights shall not be construed to deny or disparage others retained
by the people”. Though the Indian Constitution does not contain such
a provision, it is implied that the rights enumerated in Part III are not
exhaustive. The fundamental rights recognised in Part III are identiﬁed in the
level of abstraction- that is, equality, liberty, and expression. The Constitution
does not provide a detailed enumeration of the facets of each enumerated
right. The Courts, while determining the scope of an enumerated right, lay

138 Section 5 of the Citizenship Act 1955 states that citizenship can be acquired through
naturalization by a person who is married to a citizen of India and is ordinarily
resident in India for seven years. Section 7A stipulates a foreign origin person whose
spouse is a Indian citizen or overseas citizen of India shall apply for OCI if their
marriage is registered and they have lived in India for a continuous period of two
years.
139 Section 2(i) of the Act deﬁnes “near relative” to include a spouse.
140 Martha C. Nussbam, A right to marry? (2010) California Law Review Vol 98(3)
1326 SUPREME COURT REPORTS [2023] 16 S.C.R.

down its facets and conceptions. For example, Courts have held that the
true essence of the right to equality is not encompassed in formal equality
where all persons are treated alike irrespective of the unequal socio-economic
status but in substantive equality.141 Similarly, this Court has in numerous
judgments held that the right to life and liberty recognised under Article 21
would be obscure if other crucial facets of liberty are not recognised. It is
in this vein that this Court recognised, inter alia, the right to livelihood,142
the right to speedy trial,143 and the right to education.144
154. Fundamental rights are characterized as positive rights and
negative rights. In fact, some draw a distinction between fundamental rights
(Part III) and the Directive Principles of State Policy (Part IV) by arguing
that the former consists of negative rights and the latter of positive rights.
In constitutional theory, negative rights are understood to involve freedom
from governmental action whereas, positive rights 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.
155. Indian jurisprudence on the scope of fundamental rights can be
divided into two thematical facets. In the ﬁrst facet, the distinction between
negative rights and positive rights faded with the harmonious reading of
fundamental rights and Directive Principles of State Policy by the courts.145
The Courts used the Directive Principles to inform the scope of fundamental
rights. In Unnikrishnan v. State of Andhra Pradesh146, the issue before
this Court was whether the Constitution guarantees a fundamental right to
education to its citizens. This Court held in the aﬃrmative and traced the
right to Article 21 and the Preamble of the Constitution. Jeevan Reddy,
J. writing for the majority observed that education is of transcendental
importance in the life of an individual without which the objectives set
forth in the Preamble cannot be achieved. It was further emphasised that
the Constitution expressly refers to education in Articles 41, 45, and 46 of

141 State of Kerala v. NM Thomas, 1976 SCR (1) 906
142 Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545
143 Hussainara Khatoon v. Home Secretary, (1980) 1 SCC81
144 Unnikrishnan v. State of AP, (1993) 1 SCC 645
145 Also see Mohd. Hanif Qureshi v. State of AP, 1959 SCR 629
146 (1993) 1 SCC 645
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the Constitution which indicates the importance conferred to it. However,
this Court limited the scope of the right to education in view of Article 45
which states that the State shall endeavour to provide free and compulsory
education for all children until they complete the age of fourteen years. Thus,
this Court held that the Constitution guarantees a right to free education for
all children until they complete the age of fourteen years.
156. In the second facet, the Courts read fundamental rights to include
both negative and positive postulates independent of the Directive Principles
of State policy. YV Chandrachud, C.J. writing the opinion for the majority in
Minerva Mills v. Union of India,147 observed that fundamental rights deal
with both negative and positive postulates. In Indibily Creative Private
limited v. Government of West Bengal148, one of us (DY Chandrachud,
J. as he then was) observed that Article 19 imposes a negative restraint on
the State to not interfere with the freedoms of all citizens and a duty on the
State to ensure that conditions for the free and unrestrained exercise of the
freedom are created. In Justice KS Puttaswamy (9J) (supra), a nine-Judge
Bench of this Court held that the Constitution guarantees the right to privacy.
This Court expressly held that the right to privacy includes both negative
and positive postulates. The negative postulate consists of the right to be left
alone and the positive postulate places a duty on the State to adopt measures
for protecting and safeguarding individual privacy.149
157. The second facet on the scope of fundamental rights is now
cemented in Indian constitutional jurisprudence. Fundamental rights
consist of both negative and positive postulates preventing the State from
interfering with the rights of the citizens and creating conditions for the
exercise of such rights respectively. This understanding of fundamental
rights is unique to Indian constitutional jurisprudence. Fundamental rights
have been construed in this wide manner by Indian Courts because of the
constitutional conception of the role of the State. Viewing fundamental rights
purely as negative rights runs the risk of undermining the role of the State.
158. Fundamental rights are not merely a restraint on the power of
the State but provisions which promote and safeguard the interests of the

147 AIR 1980 C 1789
148 (2020) 12 SCC 436
149 Plurality opinion authored by Justice DY Chandrachud (paragraph 158)
1328 SUPREME COURT REPORTS [2023] 16 S.C.R.

citizens. They require the State to restrain its exercise of power and create
conducive conditions for the exercise of rights. If such a positive obligation
is not read into the State’s power, then the rights which are guaranteed by
the Constitution would become a dead letter. This is because the question
of whether the State is curtailing the rights of citizens would only arise if
the citizens have the capacity and capability to exercise such rights in the
ﬁrst place.
159. Thus, if the Constitution guarantees a fundamental right to marry
then a corresponding positive obligation is placed on the State to establish
the institution of marriage if the legal regime does not provide for it. This
warrants us to inquire if the institution of marriage is in itself so crucial that
it must be elevated to the status of a fundamental right. As elucidated in the
previous section of this judgment, marriage as an institution has attained
social and legal signiﬁcance because of its expressive and material beneﬁts.
This Court while determining if the Constitution guarantees the right to
marry must account for these considerations as well.
vi. Approaches to identifying unenumerated rights
160. The courts identify unenumerated rights by tracing them either
to speciﬁc provisions of Part III of the Constitution or to the chief values
which the Constitution espouses. The premise of this exercise undertaken
by courts is that the rights guaranteed in Part III of the Constitution can only
be eﬀectively secured if certain other entitlements are safeguarded. That is,
the rights guaranteed expressly by the Constitution would remain parchment
rights, if conditions for the eﬀective exercise of them are not created. To
put it diﬀerently, rights will only be secured if citizens possess capabilities
to exercise the right.150 In fact, the positive and negative postulations of
fundamental rights arise from this broad understanding of the purpose served
by fundamental rights. In this method of deriving rights, the court traces
unenumerated rights to speciﬁc provisions of the Constitution such as liberty
(Article 21) or freedom of expression (Article 19) or equality (Article 14).
161. In the second method used by courts to derive unenumerated
rights, rights are not traced to speciﬁc fundamental rights but to the values

150 Martha C Nussbaum, Capabilities as fundamental entitlements: Sen and Social
Justice, (2003) Feminist Economics 9 (203) 33
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or the identity of the Constitution. This method of deriving unenumerated
rights attained prominence after the judgment of this Court in RC Cooper
v. Union of India151 which held that fundamental rights are not water-tight
compartments and that the thread of reasonableness contemplated in Article
14 runs through Article 21 aswell. The aspirational values of the Indian
Constitution reﬂected in the preamble is to secure justice, liberty, equality,
and fraternity to all its citizens. However, constitutional identity is not
readily borrowed from preambular values. Constitutional identity is secured
by a gradual process which is characterized by a dialogue between the
institutions of governance (such as the legislature, the executive, the courts,
and the statutory commissions) and the public over internal and external
dissonances.152 There is external dissonance when there is an apparent
conﬂict between a Constitution’s aspirational ideals and the socio-political
reality.153 It is characterized by internal dissonance when there is a conﬂict
between the provisions of the Constitution. The Indian jurisprudence on the
equality code is an apt example of how constitutional identity has evolved
through dialogue between various stakeholders to advance the conception
of factual equality. This Court has been using both the above mentioned
approaches to identify unenumerated rights. For example, this Court in
Justice KS Puttaswamy (9J) held that the Constitution guarantees the
right to privacy by using both the speciﬁc rights approach and the identity
approach. This Court grounded the right to privacy in the concepts of
liberty,154 freedom,155 dignity,156 and the idea of individual self-development
which runs through the provisions of the Constitution.157
vii. The scope of the State’s regulation of the ‘intimate zone’
162. The learned Solicitor General made the following two arguments:
(i) Intimate relationships, whether between homosexual or a heterosexual
couples cannot be subject to State regulation because it falls in the ‘intimate

151 (1970) 1 SCC 248
152 Gary Jeﬀrey Jacobson, Rights and American Constitutional identity, (2011) Vol. 43
(4) 409
153 ibid
154 Opinion of Justice Chelameshwar
155 Opinion of Justice DY Chandrachud
156 Opinion of Justice Bobde
157 Opinions of Justice RF Nariman and Justice Sapre
1330 SUPREME COURT REPORTS [2023] 16 S.C.R.

zone of privacy’; (ii) The State regulates heterosexual marriages only
because there is public interest in sustaining the human population through
procreation.
163. For this Court to determine if the State has a duty to confer
recognition upon all relationships, it must ﬁrstly delineate the contours of
the State’s regulation of intimate relationships vis-à-vis privacy concerns.
The plurality opinion authored by one of us (Justice D.Y. Chandrachud) in
Justice KS Puttaswamy (9J) (supra), while discussing the scope of the
right to privacy, refers to an article titled “A typology of privacy”158 which
classiﬁes privacy into nine categories.
164. In addition to listing various forms of privacy, the authors have
also classiﬁed the forms of privacy based on those which are necessary for the
fulﬁlment of the freedom to be let alone and the freedom to self-development.
The intimate zone of privacy subsumes spatial privacy (which corresponds
to the freedom to let alone) and decisional privacy (which corresponds to
the freedom of self-development). The formation of human relationships
falls within the intimate zone because relationships are relegated to the
sphere of the home or the private zone and they involve intimate choices.
165. The intimate zone is shielded from State regulation because
relationships operate in a ‘private space’ and decisions taken in a private
space in exercise of an individual’s autonomy (such as the choice of partner,
or procreation) are ‘private activities.’ This Court in Justice KS Puttaswamy
(9J) (supra) held that privacy is intrinsic to the realization of constitutional
values and entrenched fundamental rights. The judgment emphasized the
importance of being left alone and the autonomy of individuals to take crucial
decisions aﬀecting their personhood, such as procreation and abortion. 159
166. At this juncture, it must be noted that the Indian Constitution does
not recognize family or partnerships as a unit for securing rights. For example,
the Irish Constitution recognizes the family as a natural unit of society and

158 Bert-Jaap Koops et al., “A Typology of Privacy”, (2017) University of Pennsylvania
Journal of International Law (2017), Vol. 38(2) 566
159 Paragraphs 90 and 157 and conclusion (F) of Justice DY Chandrachud’s opinion;
paragraph 46 of Justice RF Nariman’s opinion; paragraph 78 of Justice SK Kaul
opinion 8
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a moral institution possessing inalienable rights.160 The Constitution by not
recognizing the family as a rights bearing unit has rejected the school of
thought where rights of individuals in a family or partnership are subsumed
within the larger unit of the family. The Constitution does not promote a
framework of rights where the rights of a family are given precedence over
individual rights of citizens constituting that family.
167. Relegating actions to the ‘private’ zone has certain shortcomings.
The disadvantage must be understood in consequentialist terms, that is, by
identifying the eﬀect of classifying certain activities as ‘private.’ One of
the prominent eﬀects of classifying actions as ‘private’ is that such actions
are protected from regulation by the State.
168. Depending on how relationships are organized and managed, they
can be “a beacon of freedom, or a prison.”161 While there are relationships
which are characterized by love, mutual-respect, and devotion to one
another, certain relationships are also characterized by the hierarchical power
structure in which they operate. Identities such as caste, religion, gender
and sexuality more often than not contribute towards the unequal power
structure in the private sphere. To recall, in a segment above, we observed
that the State’s interest in regulating relationships in the form of marriage
is to democratize the private space by ensuring that actions in the intimate
space are in consonance with constitutional values. For the reasons in the
preceding paragraph, the argument of the learned Solicitor General that the
State regulates relationships in the form of marriage solely because they
result in procreation is erroneous. The State’s interest in democratizing
personal relationships is not speciﬁc to the institution of marriage. The
State’s regulation of marriage is merely one of the many ways by which it
can fulﬁll these State aims. However, it is open to the State to use other forms
of regulation to fulﬁll the interests identiﬁed above. There is public interest
in the State’s regulation of all relationships because relationships involving
two persons may be unequal by their very nature. Scholars have emphasized
that the democratization of personal relationships serves two purposes. First,

160 Article 41 of the Irish Constitution stipulates that the State pledges to guard with
special care the institution of marriage on which the family is founded.
161 Tammy R Pettinato, “Transforming Marriage: The Transformation of Intimacy and
the Democratizing Potential of Love” JL & Fam. Stud. 9, 101
1332 SUPREME COURT REPORTS [2023] 16 S.C.R.

it contributes towards eliminating the inequality of the power structure in a
relationship thereby preventing exploitation and subjugation; and second, it
contributes towards creating a more independent and self-suﬃcient citizenry
which would have the ability to see alternative viewpoints. 162
169. The withdrawal of the State from the domestic space leaves the
disadvantaged party unprotected since classifying certain actions as being
private has diﬀerent connotations for those with and without power. In the
case of personal relationships which are characterized by inequality, the
actions of the more powerful person gains immunity from scrutiny and a
degree of legitimacy.163 Thus, all activities in the ‘private space’ dealing with
intimate choices must not readily and blindly be categorized to be beyond
the scope of the State’s regulation. The State must assess if its interest in
democratizing the private space overrides the interests of privacy in a given
situation.
170. The State has identiﬁed speciﬁc areas in the private sphere where
the interest in democratizing that space overrides the interests of privacy.
For example, the State regulates relationships which are in the nature of
marriage through the DV Act. The preamble to the DV Act provides that
the statute was enacted to protect the rights of women “who are victims
of violence of any kind occurring within a family.” The Act regulates the
conduct of persons in a domestic relationship which has been deﬁned as a
relationship between two persons who live together in a shared household
where they are related by marriage, a relationship in the nature of marriage,
adoption, or consanguinity. By criminalizing actions of domestic violence
against women, the State recognizes that there is an unequal power structure
which operates in heterosexual relationships. The State also recognizes that
the party with lesser power and autonomy may be subjected to violence
and suppression and consequently, seeks to democratize the space through
regulation.
171. However, in certain other circumstances, the State and the Courts
have recognized that there is no State interest in regulating the personal

162 ibid
163 Frances Olsen, “Constitutional law: Feminist Critique of the public/private
distinction” Vol. 10 (1993), Constitutional Commentary, p. 319 (1990)
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space. For example, this Court has recognized that Article 21 protects
a woman’s reproductive choices which includes whether she wants to
terminate her pregnancy.164 The Medical Termination of Pregnancy Act 1971
recognizes the decisional autonomy of women over procreation, which is
an intimate aspect of their lives. In very narrow circumstances, the State
regulates intimate choices about child birth and procreation. For example,
the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act 1994 regulates the intimate zone by prohibiting sex-selection
before and after conception. In this case, the State recognizes that the interest
in preventing female foeticide and infanticide overrides the privacy interests
and decisional autonomy of individuals.
The argument that the State has an interest in regulating heterosexual
marriages only to sustain society through procreation is fallacious because
the state does not impose a compelled choice of procreation on married
heterosexual couples. Moreover, heterosexual couples need not be married
to procreate nor is marriage a criteria for procreation.
viii. The right to marry
a. Have the courts recognised the right to marry?
172. The petitioners submit that this Court has held that the
Constitution guarantees the right to marry in Shaﬁn Jahan (supra) and
Shakti Vahini (supra). In Shaﬁn Jahan (supra), Ashokan, the father
of Akhila alias Hadiya moved a habeas corpus petition before the High
Court of Kerala with the apprehension that his daughter was likely to
be transported out of the country. During the course of the hearing, the
High Court was informed that she had married the petitioner. However,
the High Court allowed the petition and directed that (i) Hadiya shall be
escorted from the hostel in which she was residing to the house of the
father; and (ii) the marriage between Hadiya and Shaﬁn Jahan was void.
The High Court observed that twenty-four year old Hadiya was capable
of being exploited and that the Court is concerned with her welfare in
exercising parens patriae jurisdiction. On appeal, this Court set aside the
judgment of the High Court. Dipak Misra, C.J. writing for the majority

164 See Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
1334 SUPREME COURT REPORTS [2023] 16 S.C.R.

observed that Hadiya was entitled to choose a partner of her choice and
curtailing the expression of choice would amount to clipping a person’s
identity. One of us (D.Y. Chandrachud, J. as he then was) authoring the
concurring judgment observed that the High Court’s exercise of jurisdiction
to declare the marriage null and void amounted to judicial overreach. This
Court observed that the choice of a partner, whether within or outside of
marriage lies in the exclusive domain of the individual, and that the State
cannot dictate or limit the freedom to choose a partner. In this context,
this Court observed that the right to marry a person of one’s choice is
integral to Article 21 of the Constitution. The relevant observations are
extracted below:
“84. […] The absolute faith of an individual to choose a life partner is
not in the least aﬀected by matters of faith. The Constitution guarantees
to each individual the right freely to practise, profess and propogate
religion. Choices of faith and belief as indeed choices in matters of
marriage lie within an areas where individual autonomy is supreme.
The law prescribes conditions for a valid marriage. It provides
remedies when relationships run aground. Neither the State not
the law can dictate a choice of partners or limit the free ability of
every person to decide on these matters.
86. The right to marry a person of one’s choice is integral to Article 21
of the Constitution. The Constitution guarantees the right to life. This
right cannot be taken away except through a law which is substantively
and procedurally fair, just and reasonable. Intrinsic to the liberty which
the Constitution guarantees as a fundamental right is the ability of
each individual to take decisions on matters central to the pursuit of
happiness. Matters of belief and faith, including whether to believe are
at the core of constitutional liberty. […] Society has no role to play in
determining our choice of partners.
[…]
88.[…] Intimacies of marriage, including the choices which individuals
make on whether or not to marry and on whom to marry, lie outside
the control of the State. Courts as upholders of constitutional freedoms
must safeguard these freedoms.”
(emphasis supplied)
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173. In Shakti Vahini (supra), proceedings under Article 32 of the
Constitution were instituted seeking directions (i) to State Governments and
the Central Government to initiate steps to combat “honour crimes” or caste-
based or religion-based murder and submit a national plan of action and a
State plan of action to curb such crimes; (ii) to direct State Governments to
constitute special cells in each district; and (iii) to launch prosecutions in
each case of “honour killing” or caste-based or religion-based murder. This
Court disposed of the writ petition by directing preventive steps, remedial
measures, and punitive measures to curb honour killings. Writing for a three-
Judge Bench, Dipak Misra, C.J. observed that the ability of an individual to
make choices is an inextricable part of dignity and “that when two adults
choose to marry out of their own volition […] they have a right to do so.”165
174. In Justice KS Puttaswamy (9J) (supra), Justice Nariman (in
his concurring opinion) observed that the right to privacy extends beyond
the right to be let alone to recognising the vital personal choices such as
the right to abort a fetus, and the right of same sex to marry. In Navtej
(supra), this Court while decriminalising homosexuality did not hold that
the Constitution recognises a right to marry. Dipak Misra, C.J. writing
for the majority held that an individual has a right to a union which
encompasses physical, mental, sexual or emotional companionship under
Article 21 of the Constitution.
175. In Shaﬁn Jahan (supra) and Shakti Vahini (supra), the issue
before this Court was whether State or non-State actors could interfere with
a person’s choice of whom to marry. The law prescribes certain essential
conditions for a valid marriage. In both these cases, this Court dealt with
situations where State or non-State actors prevented a couple which was
otherwise entitled to marry, from marrying. In the case of Shaﬁn Jahan
(supra), the restriction was sought to be imposed because the partners
belonged to diﬀerent religions and in Shakti Vahini (supra), this Court dealt
with the issue of restraints placed by the society on the exercise of a person’s
right to marry a person of a diﬀerence caste and religion. In Shaﬁn Jahan
(supra) this Court held that religion and caste cannot be impediments in
the exercise of a person’s right to choose whom to marry. In Shaﬁn Jahan

165 Paragraph 45 of the judgment.
1336 SUPREME COURT REPORTS [2023] 16 S.C.R.

(supra) this Court held that no State or non-State entity can interfere with
their right to marry a person of their choice.
176. Neither the majority in Justice KS Puttaswamy (9J) (supra)
nor the majority in Navtej (supra) hold that the Constitution guarantees
the right to marry. Moreover, the opinion of Justice Nariman in Justice KS
Puttawamy (9J) (supra) only made a passing reference to the right to marry.
It did not trace the right to marry to any of the entrenched fundamental rights
nor did it comment on the scope of such a right. In Justice KS Puttaswamy
(9J), the issue before this Court was whether the Constitution recognises
a right to privacy. Thus, this case did not address the issue of whether the
Constitution recognises the right to marry. It now falls upon this Court for
the ﬁrst time to decide if the Constitution recognises such a right.
b. There is no fundamental right to marry
177. The petitioners relied on the judgment of the US Supreme
Court in Obergefell (supra) in which the right to marry was recognised
as a fundamental right. In Obergefell (supra), the Supreme Court of the
United States held that the Fourteenth Amendment of the Constitution of
the United States imposes a positive obligation on the State to license a
marriage between two people of the same sex. In Michigan, Kentucky,
Ohio, and Tennessee, marriage was deﬁned as a union between one man
and one woman. The petitioners (who were same-sex couples) claimed
that their exclusion from the institution of marriage violated the Fourteenth
Amendment of the US Constitution.166 The petitioners ﬁled suits in US
district courts in their home States. The district courts ruled in their favour.
On appeal, the United States Court of Appeal consolidated the cases and
reversed the judgment of the District Court holding that the State has no
constitutional obligation to license same-sex marriages or to recognise
same-sex marriages performed out of State.
178. The issue before the US Supreme Court was not whether the
Constitution recognises the right to marry but whether the Fourteenth
Amendment requires a State to license a marriage between two people

166 Section 1 to the Fourteenth Amendment to the US Constitution states that no State
shall deprive any person of life, liberty, or property without due process of law and
equal protection of the laws.
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of the same-sex. Various decisions of the US Supreme Court had already
recognised the right to marry.167 Justice Kennedy (writing for the majority)
observed that the right to marry consists of the following four components:
(i) the right of choice; (ii) the protection of intimate association by supporting
the union of two persons; (iii) safeguards for children and families, and (iv)
cornerstone of social order because marriage is the basis for governmental
rights, beneﬁts, and responsibilities.
179. The opinion of the majority held that the components of marriage
are not exclusive to heterosexual couples. Thus, the State by not recognising
a same-sex union (which is legal) and by not granting beneﬁts which
accrue from a marriage was held to be treating same-sex couples unequally,
violating the equal protection clause.
180. Earlier judgments of the US Courts had held that marriage is a
civic right because it is fundamental to existence and survival168, is part
of the fundamental right to privacy169, and essential to the orderly pursuit
of happiness.170 It was also held that without the right to marry, one is
excluded from the full range of human experience and is denied “full
protection of the laws for one’s avowed commitment to an intimate and
lasting relationship.”171 The jurisprudence which has emanated from the
US Courts indicates that the right to marry is recognised as a fundamental
right because of the beneﬁts (both expressive and material) attached to it.
181. Entry 5 of the Concurrent List of the Seventh Schedule to the
Constitution grants both the State legislature and Parliament the power to
enact laws with respect to marriage. The provision reads as follows:
“Marriage and divorce; infants and minors; adoption; wills, intestacy
and succession; joint family and partition; all matters in respect of

167 In Loving v. Virginia, 388 U.S 1, 12 (1967), the US Supreme Court invalidated
bans on inter-racial unions holding that marriage is one of the vital personal rights
essential to the orderly pursuit of happiness by free men; In Turner v. Saﬂey, 482
U.S. 78, 95(1987) the US Supreme Court held that the right to marry was abridged
by regulations limiting the privilege of prison inmates to marry.
168 Skinner v. Oklahoma, 316 U.S 535
169 Zablocki v. Redhail, 434 U.S 374
170 Loving v. Virginia, 388 US 1
171 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass.2003)
1338 SUPREME COURT REPORTS [2023] 16 S.C.R.

which parties in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal law.”
(emphasis supplied)
182. In pursuance of the power conferred by Articles 245 and 246 read
with Entry 5 of the Concurrent List, Parliament has enacted laws creating
and regulating the socio-legal institution of marriage. The State legislatures
have made amendments to such laws with the assent of the President, since
the subject of marriage is in the Concurrent list. The petitioners seek that
the Court recognise the right to marry as a fundamental right. As explained
above, this would mean that even if Parliament and the State legislatures
have not created an institution of marriage in exercise of their powers under
Entry 5 of the Concurrent list, they would be obligated to create an institution
because of the positive postulate encompassed in the right to marry. This
argument cannot be accepted.
183. As explained in the previous section, the State through the
instrument of law characterises marriage with two constituent elements:
the expressive component and the material component. Marriage may not
have attained the social and legal signiﬁcance it currently has if the State
had not regulated it through law. Thus, while marriage is not fundamental
in itself, it may have attained signiﬁcance because of the beneﬁts which are
realised through regulation.
184. This Court in Justice KS Puttaswamy (9J) (supra) while
holding that privacy is a fundamental right was not guided by the content
given to privacy by the State. This Court was of the opinion that if the right
to privacy is not secured, the full purport of the rights entrenched in the
Constitution could not be secured. Similarly, this Court in Unnikrishnan
(supra) held that the right to education is a fundamental right. The right to
education was derived from the provisions of the Directive Principles of the
State Policy and their centrality to development of an individual. Entry 25
of the Concurrent list authorizes Parliament and State legislatures to enact
laws on “education.” The State in pursuance of this power has enacted
numerous legislations relating to education such as laws establishing
and regulating universities and colleges. However, the right to education
was held to be a fundamental right, not because of any statute or law but
because of its centrality to the values that the Constitution espouses. The
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arguments of the petitioners that the Constitution recognises a right to
marry is hinged on the meaning accorded to marriage by statutes, which
cannot be accepted.
185. The Constitution does not expressly recognize a fundamental right
to marry. Yet it cannot be gainsaid that many of our constitutional values,
including the right to life and personal liberty may comprehend the values
which a marital relationship entails. They may at the very least entail respect
for the choice of a person whether and when to enter upon marriage and the
right to choose a marital partner.
c. The challenge to the SMA
I. The scheme of the SMA
186. The SMA was enacted to provide a special form of marriage for
couples belonging to diﬀerent religions and castes. Section 4 of the SMA
prescribes conditions relating to the solemnization of special marriages. The
relevant portion of the provision is extracted below:
“4. Conditions relating to solemnization of special marriages.―
Notwithstanding anything contained in any other law for the time
being in force relating to the solemnization of marriages, a marriage
between any two persons may be solemnized under this Act, if at the
time of the marriage the following conditions are fulﬁlled, namely:―
(a) neither party has a spouse living;
[(b) neither party―
(i) is incapable of giving a valid consent to it in consequence of
unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suﬀering from
mental disorder of such a kind or to such an extent as to be unﬁt for
marriage and the procreation of children; or
(iii) has been subject to recurrent attacks of insanity
(c) the male has completed the age of twenty-one years and the female
the age of eighteen years;
1340 SUPREME COURT REPORTS [2023] 16 S.C.R.

(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties
permits of a marriage between them, such marriage may be solemnized,
notwithstanding that they are within the degrees of prohibited
relationship;
[…] ”
(emphasis supplied)
187. Section 4(a) and (b) use the gender-neutral word ‘party.’ However,
Section 4(c) stipulates that the male must have completed twenty-one years
and the female must have completed eighteen years. Section 4(d) stipulates
that the parties should not be within the degrees of prohibited relationship.
Section 2(b) deﬁnes “degrees of prohibited relationship: as follows:
“(b) “degrees of prohibited relationship”-a man and any of the
persons mentioned in Part I of the First Schedule and a woman and
any of the persons mentioned in Part II of the said Schedule are within
the degrees of prohibited relationship.
(emphasis supplied)
188. Part I of the First Schedule consists only of women’s relationships
with men, such as mother and daughter. Part II of the First Schedule
consists only of men’s relationships with women, such as father and son.
The conditions stipulated in Section 4 when read with the deﬁnition of
prohibited relationship in Section 2(b), limit the application of the SMA to
heterosexual unions.
189. Chapter IV of the enactment lays down the consequences of
marriage under the SMA. Section 19 stipulates that the marriage solemnized
under the SMA of any member of an undivided family who professes the
Hindu, Buddhist, Sikh, or Jain religions shall be deemed to eﬀect their
severance from such family. Section 20 provides that subject to the provisions
of Section 19, any person whose marriage is solemnized under this Act shall
have the same rights and shall be subject to the same disabilities in regard to
the right of succession as a person to whom the Caste Disabilities Removal
Act 1850 applies. The Caste Disabilities Removal Act 1950 provides that
any law or usage which inﬂicts the forfeiture of rights or property, or which
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would aﬀect the right of inheritance because of renouncing religion, having
been excluded from the communion of religion, or being deprived of caste
shall cease to be enforced by law. Thus, subject to Section 19 of the Act, a
person’s right to inheritance shall be not forfeited because they married a
person of another religion or caste.
190. Section 21 states that succession to the property of any person
whose marriage is solemnized under this Act shall be regulated by the
provisions of the Indian Succession Act 1925. Section 21A provides a
special provision in certain cases. The provision states that Sections 19,
20 (to the extent that it creates a disability), and 21 shall not apply when
a marriage is solemnized between a person who professes the Hindu,
Buddhist, Sikh, or Jain religion with a person who professes the Hindu,
Buddhist, Sikh or Jain religion. The rules of succession under the ISA
shall not apply where two persons who solemnize their marriage under
the SMA belong to the Hindu, Buddhist, Sikh, or Jain religion. Section
21 essentially ruptured the cord between a Hindu, Buddhist, Sikh, or Jain
and their personal laws if they married under the provisions of the SMA.
Section 21A was introduced in 1976 as a progressive provision. Section
21A links the SMA with the HSA if both the parties belong to a religion
to which the HSA applies. Section 21A was introduced to remedy the
disability brought in by Section 21.
191. Section 27 deals with divorce. Section 27(1A) grants the wife
additional grounds of divorce. Section 31 stipulates the Court to which a
petition for divorce must be made. Sub-Section (2) of the Section is a special
provision available to the wife for the presentation of a divorce petition.
Section 36 stipulates that the husband may be directed to pay expenses of
the proceedings and such sum based on the income of the husband when the
wife has no independent income, suﬃcient to support herself and necessary
for divorce proceedings. Section 37 stipulates that the court may order the
husband to pay the wife permanent alimony and maintenance.
192. The petitioners argue that Section 4 of the SMA is unconstitutional
not because it expressly excludes or bars the marriage between two persons
of the same-sex but because it excludes the solemnization of marriage
between non-heterosexual persons by implication since it only governs a
heterosexual union.
1342 SUPREME COURT REPORTS [2023] 16 S.C.R.

II. The decision of the South African Constitutional Court in Fourie
193. The petitioners have relied on Fourie (supra), a case which
emanated from South Africa, to argue that provisions of the SMA must
be read in a gender-neutral manner. In Fourie (supra), the common law
deﬁnition of marriage and Section 30(1) of the Marriage Act (Act 25 of
1961)172 were challenged. The common law deﬁnition of marriage in South
Africa is that it is a “union of one man with one woman, to the exclusion,
while its lasts, of all others.” The formula for marriage prescribed by Section
30(1) of the Marriage Act is extracted below:
“Do you, A.B., declare that as far as you know there is no lawful
impediment to your proposed marriage with C.D. here present, and
that you call all here present to witness that you take C.D. as your
lawful wife (or husband)?’, and thereupon the parties shall give each
other the right hand and the marriage oﬃcer concerned shall declare
the marriage solemnized in the following words: ‘I declare that A.B.
and C.D. here present have been lawfully married.”
(emphasis supplied)
194. The petitioners in Fourie (supra) argued that the reference of
“husband or wife” in Section 30(1) excluded same-sex couples. The South
African Constitutional Court allowed the petition by holding that Section
30(1) was unconstitutional because it excluded same-sex couples. The
opinion of the majority authored by Justice Albie Sachs suspended the
declaration of invalidity for one year to cure defects in view of Section 172(1)
(b) of the South African Constitution. If the defect was not cured within the
time frame stipulated, the word ‘spouse’ was to be read in the place of “wife
(or husband)”. Justice Kate O Regan who authored the minority opinion
disagreed with the majority on the question of the remedy. The learned
Judge observed that the scales of justice and equity necessitate immediate
relief and not a suspended declaration of invalidity.
195. The Court observed that Section 30(1) of the South African
Marriage Act was underinclusive because it excluded same-sex unions by
silence and omission. Such omission was as eﬀective in law and practice as if

172 “South African Marriage Act”
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eﬀected by express language. The Court held that it would be discriminatory
if same-sex couples were not given the beneﬁts (both tangible and intangible)
which were available to heterosexual couples through marriage. The State
justiﬁed the exclusion of same-sex couples from the institution of marriage
because of the social nature of marriage and strong religious beliefs. The
Court rejected this argument on the ground that the reasons which were
used to justify the exclusion were grounded in prejudice and that it was not
a valid justiﬁcation for the violation of fundamental rights.
196. On the question of relief, the Court made the following
observations:
a. Parliament had expressly and impliedly recognised same-sex
partnerships. The Domestic Violence Act 116 of 1998 deﬁned
a domestic partnership as a relationship between a complainant
and a respondent who are of the same or opposite sex and who
live/lived together in a relationship in the nature of marriage.
The Estate Duty Act 45 of 1955 stipulated that the spouse in
relation to a deceased person includes a person who at the time
of death of the deceased person was a partner of such person in
a same-sex or heterosexual union;
b. Section 172(1)(b) of the Constitution granted the Court the
power to issue such order including suspending the declaration
of invalidity for any period and on any conditions, to allow the
competent authority to correct the defect;
c. There was extensive consultation with the public on the
issue of same-sex marriage. The South African Law Reform
Commission’s memorandum on domestic partnership harmonised
family law principles with the Bill of Rights which was preceded
by extensive public consultation; and
d. The Court instead of reading in must grant the remedy of
suspended declaration because reading in would be a temporary
remedial measure which would be far less likely to achieve
equality. Legislative action was well-suited for this purpose.
197. Though facially the case mounted by the petitioners before us is
similar to the case mounted by the petitioners in Fourie (supra), the legal
1344 SUPREME COURT REPORTS [2023] 16 S.C.R.

and the constitutional regime in South Africa and India varies. First, it must
be noticed that unlike the SMA, there was only one provision in the South
African Marriage Act (that is, Section 30(1)) which made a reference to
heterosexual relationships. However, as indicated above, various provisions
of the SMA (Sections 4, 27(1A), 31, 36, and 37) conﬁne marriage to a union
between heterosexual persons. Second, various enactments in South Africa
already recognised same-sex unions unlike the Indian legal landscape where
no law even remotely recognises the union between a same-sex couple.
Thus, the canvas of the challenge before the South African Constitutional
Court in Fourie (supra) and the legal and constitutional regime in place
varies widely from that in India.
III. The decision of the UK House of Lords in Ghaidan
198. Learned counsel for the petitioners argued that this Court ought
to interpret the SMA to make it ‘constitutionally compliant.’ They relied
on the decision of the House of Lords of the United Kingdom in Ghaidan
(supra) and urged this Court to adopt the principle of interpretation which
had been adopted in that case.
199. In that case, the respondent was in a stable and monogamous
homosexual relationship with his partner who was a tenant in the house
that the couple shared. The respondent and his partner were living together
when the latter died. The appellant (being the landlord) claimed possession
of the house. The respondent resisted the claim on the ground that he ought
to be considered a ‘statutory tenant’ in terms of UK’s Rent Act 1977.173 This
enactment provided that a surviving spouse of the original tenant shall be
the statutory tenant if the surviving spouse was residing in the house in
question immediately before the death of the original tenant. It also stipulated
that a person who was living with the original tenant “as his or her wife or
husband” shall be treated as the spouse of the original tenant. In essence,
the Rent Act protected the tenancy rights of a heterosexual couple when the
couple was in a relationship that was of a similar character as marriage. The
surviving partner in a homosexual relationship could have become entitled to
an ‘assured tenancy’ which was less advantageous than a statutory tenancy.

173 “Rent Act”
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200. The respondent contended that the diﬀerence in the treatment of
heterosexual couples and homosexual couples was based on their sexual
orientation alone, and lacked justiﬁcation, infringing Article 14 (prohibition
of discrimination) read with Article 8 (right to respect for private and family
life) of the European Convention on Human Rights.174 He further argued that
the court had a duty under Section 3 of the UK’s Human Rights Act 1998175
to read and give eﬀect to the Rent Act in a way which was compliant with
the ECHR. In other words, he urged the court to read the Rent Act such that
it granted the surviving partner in a close and stable homosexual relationship
the same rights as the surviving partner in a heterosexual relationship of a
similar nature – the right to succeed the tenancy as a statutory tenant. The
court of ﬁrst instance rejected the respondent’s arguments. The ﬁrst appellate
court allowed the appeal, leading to proceedings before the ﬁnal appellate
authority, the House of Lords (now, the Supreme Court of the UK).
201. The House of Lords accepted the respondent’s arguments. 176 It
noted that the rationale of the Rent Act was that the security of tenure in
a house which a couple had made their home ought not to depend upon
which of them dies ﬁrst. It held that there was no legitimate state aim
which justiﬁed the diﬀerence in treatment of heterosexual and homosexual
couples, and found that the Rent Act therefore violated the rights of the
respondent under the ECHR. Having so found, it relied on Section 3 of
the Human Rights Act to interpret the Rent Act to mean that the survivor
of a homosexual couple would have rights on par with the survivor of
a heterosexual relationship for the purposes of succession as a statutory
tenant.
202. Section 3 of the Human Rights Act reads as follows:
“3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and subordinate
legislation must be read and given eﬀect in a way which is compatible
with the Convention rights.”

174 “ECHR”
175 “Human Rights Act”
176 By a majority of 4-1.
1346 SUPREME COURT REPORTS [2023] 16 S.C.R.

As noticed by the House of Lords in Ghaidan (supra):
a. This provision was one of the primary means by which rights
under the ECHR were brought into the law of the UK;
b. Section 3 permitted courts in the UK to depart from the
unambiguous meaning of a statute, if required;
c. It also authorized courts in the UK to depart from legislative
intent in interpreting the language used in a statute, if required;
d. It allowed courts to read in words to a statute which changed the
meaning of that statute, to make it compliant with the ECHR as
long as the new meaning was compatible with the underlying
thrust of that enactment; and
e. Section 3 did not authorize courts to make decisions for which
they were not equipped, such as when there were many ways of
making a particular provision compliant with the ECHR.
The House of Lords also noted that diﬃcult problems could arise in
some cases.
203. It is not open to this Court to adopt the interpretative principle laid
down in Section 3 of the Human Rights Act for a simple reason: the House of
Lords derived the power to depart from legislative intent and read words into
a statute such that it was compliant with the ECHR from the Human Rights
Act, a statute enacted by the Parliament of UK. It did not rely on a common
law principle or fashion a principle of interpretation based on common law.
The House of Lords itself noted that “the interpretative obligation decreed
by section 3 is of an unusual and far-reaching character.”177 In India,
there is no legislation which permits this Court to depart from legislative
intent and read words into a legislation such that it is compliant with the
Constitution.178 As discussed in the previous segment of this judgment on the

177 Opinion of Lord Nicholls of Birkenhead, Ghaidan (supra).
178 Principles of interpretation which are well accepted in India must guide this Court’s
decision. For example, when two constructions of a provision are possible, courts
ought to prefer the construction which gives eﬀect to the provision rather than the
one which renders it inoperative. M. Pentiah v. Veeramallappa Muddal, 1961 (2)
SCR 295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709
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power of judicial review, courts in India must be circumspect in relying on
the law in other jurisdictions, torn from the context in which those decisions
have been crafted. It is not permissible for this Court to exercise a power
which the Parliament of another country conferred on its courts, absent a
similar conferment of power under the Indian Constitution. This Court must
exercise those powers which it has by virtue of the Constitution of India or
any other Indian law. In any event, as the House of Lords held, courts may
not exercise this power to make decisions for which they are ill equipped.
This Court is not equipped to recognize the right of queer persons to marry
under the SMA for reasons discussed in subsequent segments.
IV. Institutional limitations with respect to the interpretation of
SMA
204. It must be noted that this Court in the beginning of the hearing
restricted the breadth of the challenge to non-personal marriage law.
However, on a careful perusal of the provisions of the SMA, it is evident that
Section 21A links the SMA to personal and non-personal laws of succession.
In fact, such is the complexity of the SMA that the petitioners themselves
had to submit lengthy charts on workability, which in eﬀect reworked the
structure of the SMA to include non-heterosexual unions.
205. Dr. Abhishek Manu Singhvi, appearing for one of the petitioners
submitted that there are three plausible interpretations of Section 21A in
its application to marriages between two Hindus under the provisions of
the SMA:
a. The Court may choose not to decide on the applicability of
Section 21A to non-heterosexual Hindu couples in the present
litigation and leave the question of succession open for future
litigation;
b. The succession of Hindu non-heterosexual couples will be
governed by the HSA and that of other interfaith non-heterosexual
couples will be governed by the ISA (similar to interfaith
heterosexual couples or heterosexual couples of other religions).
This requires a gender-neutral reading of the HSA and the
ISA. The words “widow” and “widower” in the ISA and “male
Hindu”, “female Hindu”, “widow”, and “widower” in the HSA
can be interpreted in a gender neutral manner. This interpretation
1348 SUPREME COURT REPORTS [2023] 16 S.C.R.

must only be limited to issues related to marriage. To include
transgender persons, the Court may hold that the words “male”
and “female” under Sections 8 and 15 of the HSA may be read
as “persons”; or
c. Since by agreement of parties, religious and personal law related
issues are beyond the scope of this litigation, it follows that
provisions of secular law that relate back to personal laws (like
Section 21A) are excluded from consideration. Since Section
21A was introduced as an exception to the regime under Sections
19 to 21, non-consideration of the issue would revert the law to
the position before the introduction of Section 21A which is that
ISA would apply to all marriages under the SMA.
206. In addition to the ‘reading in’ of the provisions of other statutes
such as ISA and HSA, the petitioners argue that the Court must also read
into the following provisions of the SMA:
a. The words “widow” and “widower” in Schedules II and III of SMA
must be read as “widow or widower” and “widower or widow”;
and
b. Section 4(c) of SMA may be interpreted in the following way:
i. For same-sex couples, the provision may be read as prescribing
eighteen years as the minimum age for both parties in a lesbian
relationship, and twenty-one years for both parties in a gay
relationship;
ii. For transgender persons, the minimum age requirement would
depend on whichever gender/sex they identify as. So, a trans-
man would be eligible to marry at twenty one years of age
while a trans-woman would be eligible to marry at eighteen
years; and
iii. For those who do not identify either as a man or a woman, the
following approach shall be adopted to ensure the inclusion
of non-binary and intersex individuals:
A. The silence of the SMA on the minimum age qualiﬁcation for
persons other than ‘men’ and ‘women’ may be read as imposing
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no restriction other than the restriction imposed by other laws
that stipulate the age at which persons are capable of making
decisions for themselves, which is eighteen years; and
B. Alternatively, the Court may lay down guidelines as an interim
measure and until Parliament ﬁlls the legislative vacuum.
207. If the Court ﬁnds that a provision is contrary to Part III of the
Constitution, it shall declare that it is void, 179 or read it down (by deleting
phrases) or read words in (by adding or substituting phrases) to save it
from being declared void. If, in the present batch of petitions, this Court
holds that Section 4 is unconstitutional because it is underinclusive to the
extent that it excludes, by implication, the marriage between same-sex
couples, the court could either strike down Section 4 of the SMA or follow
the workability model submitted by the petitioners. If the Court follows
the ﬁrst approach, the purpose of a progressive legislation such as the
SMA would be lost. The SMA was enacted to enable persons of diﬀerent
religions and castes to marry. If the SMA is held void for excluding same-
sex couples, it would take India back to the pre-independence era were
two persons of diﬀerent religions and caste were unable to celebrate love
in the form of marriage. Such a judicial verdict would not only have the
eﬀect of taking the nation back to the era when it was clothed in social
inequality and religious intolerance but would also push the courts to
choose between eradicating one form of discrimination and prejudice at
the cost of permitting another.
208. If this Court takes the second approach and reads words into the
provisions of the SMA and provisions of other allied laws such as the ISA
and HSA, it would in eﬀect be entering into the realm of the legislature. The
submissions of the petitioners indicate that this Court would be required
to extensively read words into numerous provisions of the SMA and other
allied laws. The Court is not equipped to undertake an exercise of such wide
amplitude because of its institutional limitations. This Court would in eﬀect
be redrafting the law(s) in the garb of reading words into the provisions.
It is trite law that judicial legislation is impermissible. We are conscious
that the court usually ﬁrst determines if the law is unconstitutional, and

179 Article 13 of the Constitution
1350 SUPREME COURT REPORTS [2023] 16 S.C.R.

then proceeds to decide on the relief. However, in this case, an exercise to
determine whether the SMA is unconstitutional because of under-inclusivity
would be futile because of the limitations of this Court’s power to grant a
remedy. Whether a change should be brought into the legislative regime of
the SMA is for Parliament to determine. Parliament has access to varied
sources of information and represents in itself a diversity of viewpoints in
the polity. The Court in the exercise of the power of judicial review must be
careful not to tread into the legislative domain. It is clariﬁed that this Court
has not adjudicated upon the validity of any laws other than the SMA, the
FMA, the Adoption Regulations, and the CARA Circular.
d. The challenge to the FMA
209. Some petitioners have challenged the constitutionality of the FMA
and have sought a declaration that it applies to any two persons who seek
to get married, regardless of their gender identity and sexual orientation.
The FMA applies to two categories of persons – to parties who seek to
solemnize their marriage under the FMA in a foreign country180 and to those
who seek to register their marriage under the FMA when their marriage has
been solemnized in a foreign country in accordance with the law of that
country.181 In both cases, at least one of the parties to the marriage must be a
citizen of India.182 Section 4 of the FMA speciﬁes certain conditions which
must be fulﬁlled before the parties can avail of its provisions:
“4. Conditions relating to solemnization of foreign marriages. — A
marriage between parties one of whom at least is a citizen of India
may be solemnized under this Act by or before a Marriage Oﬃcer in a
foreign country, if, at the time of the marriage, the following conditions
are fulﬁlled, namely:—
(a) neither party has a spouse living,
(b) neither party is an idiot or a lunatic,
(c) the bridegroom has completed the age of twenty-one years and the
bride the age of eighteen years at the time of the marriage, and

180 Chapter II, FMA
181 Chapter III, FMA
182 Section 4, FMA; Section 17(2), FMA
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(d) the parties are not within the degrees of prohibited relationship:
Provided that where the personal law or a custom governing at least
one of the parties permits of a marriage between them, such marriage
may be solemnized, notwithstanding that they are within the degrees
of prohibited relationship.”
210. Clauses (c) and (d) contain requirements which prevent this Court
from interpreting the FMA as applying to persons regardless of their sexual
orientation. Clause (c) requires the bridegroom to be at least twenty-one
years and the bride to be at least eighteen years of age. If this Court were
to interpret Section 4 as applying to same-sex relationships, the question
of how clause (c) would apply to such relationships would arise. Various
approaches were proposed including reading the provision as requiring a
minimum age of twenty-one for all men and eighteen for all women, such
that two men who sought to marry would both be required to be twenty-one
years and two women who sought to marry would both have to be eighteen
years. Another approach that was proposed was to interpret the provision
as requiring a common minimum age for all same-sex couples. This Court
is of the opinion that such an exercise would amount to judicial legislation.
When there are various options open for a legislative change and policy
considerations abound, it is best left to Parliament to engage in democratic
decision-making and settle upon a suitable course of action.
211. Clause (d) requires the parties not to be within the degrees of
prohibited relationship. Section 2(a) deﬁnes the phrase ‘degrees of prohibited
relationship’ as having the same meaning as in the SMA. The reasons why
the degrees of prohibited relationship cannot be interpreted by this Court
to include same-sex relationships has been discussed in the preceding
paragraphs. The same reasons apply to Clause (d) of the FMA.
212. The FMA recognizes the right of an Indian citizen to marry outside
India or to a marry a person from a foreign country. In essence, it recognizes
the right of a citizen of India to choose a life partner who is not a citizen of
India. It follows that citizens of India may enter into an abiding union with
a person of their choice, including a person of the same sex as them, even if
that person is not a citizen of India. It is accordingly clariﬁed that the right
of a citizen of India to enter into an abiding union with a foreign citizen of
the same sex is preserved.
1352 SUPREME COURT REPORTS [2023] 16 S.C.R.

ix. The right to enter into a union
“The need to love is as important a force in human society as is
the will to power. Power wants to destroy or consume or drive
away the other, the one who is diﬀerent, whose will is diﬀerent.
Love wants the other to remain, always nearby, but always itself,
always other.”183
a. The goal of self-development and what it means to be human
213. Over the years, through dialogue both inside and outside the
courts, it has been established that the negative and positive postulates of
fundamental freedoms and the Constitution as a whole inter alia secure
conditions for self-development at both an individual and a group level.
This understanding can be traced to numerous provisions of Part III of
the Constitution, the preambular values, and the jurisprudence which has
emanated from Courts. For example, this Court has held that the right to live
under Article 21 secures more than the right of physical existence. It includes,
inter alia, the right to a quality life which has been interpreted to include the
right to live in an environment free from smoke and pollution,184 the right
to access good roads,185 and a suitable accommodation which would enable
them to grow in every aspect – mental, physical, and intellectual.186 Similarly,
it has been established that a free exchange of ideas recognized under Article
19 is an integral aspect of the right to self-development.187 The rights against
exploitation188 and against discrimination and untouchability189 secure the
creation of equal spaces in public and private spheres, which is essential for
self-growth. The right to quality education without discrimination190 also
ensures that every citizen secures basic education to develop themselves.

183 Margaret Trawick, Notes on Love in a Tamil Family (University of California Press
1992)
184 MC Mehta v. Union of India, (2019) 17 SCC 490
185 State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68
186 Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520
187 D.C Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216
188 Articles 23 and 24 of the Constitution
189 Articles 15 and 16 of the Constitution
190 Article 21A of the Constitution
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The freedom to profess and practice religion191 also enables individuals to
evolve spiritually.
214. This understanding of the Constitution is substantiated on a
reading of Part IV of the Constitution. To illustrate, Article 38 states that
the State shall strive to promote the welfare of the people, Article 42
stipulates that the State shall endeavour to secure just and humane conditions
of work, and Article 47 places a duty on the State to raise the level of
nutrition and the standard of living. The Constitution, through both positive
and negative postulations, inter alia capacitates citizens in their quest to
develop themselves. Such capacity-building enables them to achieve their
full potential in both the private and the public space, and to be happy. The
Indian Constitution (unlike, say, the South African Constitution) does not
expressly provide that the Constitution seeks to improve the quality of life
and free the potential of each person. However, such an understanding can
be gleaned from the provisions of Part III and Part IV of the Constitution.
Thus, one of the purposes of the rights framework is to enable the citizenry
to attain the goal of self-development.
215. Martha C. Nussbaum laid down a list of ten capabilities which
are central requirements to live a quality life.192 Two of the identiﬁed
capabilities are crucial for our discussion.193 The ﬁrst is ‘emotions’ which
is characterized as follows:
“5. Emotions: Being able to have attachments to things and people
outside ourselves; to love those who love and care for us, to grieve
at their absence; in general, to love, to grieve, to experience longing,
gratitude, and justiﬁed anger. Not having one’s emotional development
blighted by fear and anxiety. (Supporting this capability means
supporting forms of human association that can be shown to be crucial
in their development)”
(emphasis supplied)

191 Articles 25 to 28 of the Constitution
192 Martha (n 150)
193 The other capabilities listed by Martha C. Nussbaum include ‘life’, ‘bodily health’,
‘bodily integrity’, ‘senses, imagination and thought’, ‘practical reason’, ‘other
species’, and ‘play’.
1354 SUPREME COURT REPORTS [2023] 16 S.C.R.

The second is ‘aﬃliation’ which is characterized as follows:
“7. Aﬃliation: A. Being able to live with and toward others, to
recognize and show concern for other human beings, to engage in
various forms of social interaction; to be able to imagine the situation
of another. (Protecting this capability means protecting institutions
that constitute and nourish such forms of aﬃliations, and also
protecting the freedom of assembly and political speech).”
(emphasis supplied)
216. The capabilities of ‘emotions’ and ‘aﬃliations’ identiﬁed by
Nussbaum for self-development and sustaining a quality life are crucial
for two important reasons. First, both capabilities focus on the human
side of a person, that is, the ability and necessity of a person to emote and
form relationships and associations. Second, the distinction between the
capabilities of ‘emotions’ and ‘aﬃliation’ is that in the former, the emphasis
is upon the agency of the individual and the freedom they have to form
bonds with other people while in the latter, the emphasis is upon granting
recognition to such associations.
217. Humans are unique in many respects. We live in complex societies,
are able to think, communicate, imagine, strategize, and do more. However,
that which sets us apart from other species does not by itself make us human.
These qualities are necessary elements of our humanity but taken alone, they
paint an incomplete picture. In addition to these qualities, our ability to feel
love and aﬀection for one another makes us human. We may not be unique
in our ability to feel the emotion of love but it is certainly a fundamental
feature of our humanity. We have an innate need to see and to be seen – to
have our identity, emotions, and needs fully acknowledged, recognized,
and accepted. The ability to feel emotions such as grief, happiness, anger,
and aﬀection and the need to share them with others makes us who we are.
As human beings, we seek companionship and most of us value abiding
relationships with other human beings in diﬀerent forms and capacities.
These relationships may take many forms – the natal family, cousins and
relatives, friends, romantic partnerships, mentors, or students. Of these,
the natal family as well as the family created with one’s life partner form
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the fundamental groups of society.194 The need and ability to be a part of a
family forms a core component of our humanity. These relationships which
nourish the emotional and spiritual aspects of our humanity are important
in and of themselves. Further, they are as important to self-development
as the intellectual (and eventually, ﬁnancial) nourishment we receive
through education. Self-development cannot be measured solely in terms
of educational qualiﬁcations and ﬁnancial capabilities. Such a description
is to forget what makes as human.
218. It is insuﬃcient if persons have the ability and freedom to
form relationships unregulated by the State. For the full enjoyment of
the such relationships, it is necessary that the State accord recognition to
such relationships. Thus, the right to enter into a union includes the right
to associate with a partner of one’s choice, according recognition to the
association, and ensuring that there is no denial of access to basic goods
and services is crucial to achieve the goal of self-development.
b. The rights under Article 19
I. The right to freedom of speech and expression and to form
intimate associations
219. Article 19(1)(a) of the Constitution recognizes the right to
freedom of speech and expression. Freedom postulates within its meaning,
both, an absence of State control as well as actions by the State which create
the conditions for the exercise of rights and freedoms. Article 19(1)(c) of
the Constitution recognizes the freedom to form associations or unions or
co-operative societies. The freedom of speech and expression is not limited
to expressive words. It also includes other forms of expression such as the
manifestation of complex identities of persons through the expression of
their sexual identity, choice of partner, and the expression of sexual desire to
a consenting party. Earlier judgments of this Court have held that expression

194 The Preamble of the United Nations Convention on the Rights of the Child recognizes
the importance of the family in the following terms: “…Convinced that the family,
as the fundamental group of society and the natural environment for the growth
and well-being of all its members and particularly children, should be aﬀorded the
necessary protection and assistance so that it can fully assume its responsibilities
within the community…”
1356 SUPREME COURT REPORTS [2023] 16 S.C.R.

of gender identity is a protected freedom under Article 19(1)(a). In NALSA
(supra), this Court held that the expression of gender identity is a form of
protected expression under Article 19(1)(a). In Navtej (supra), this Court
held that Section 377 of the IPC infringes upon the freedom of expression
of queer persons, protected under Article 19(1)(a).
220. Courts have traditionally interpreted the right to form an
association guaranteed under Article 19(1)(c) to mean associations formed by
workers or employees for collective bargaining to attain equitable working
conditions. However, the entire gamut of the freedom protected under
Article 19(1)(c) cannot be restricted to this singular conception. The ambit
of the freedom under Article 19(1)(c) is much wider. The provision does
not merely protect the freedom to form an association to create spaces for
political speech or for espousing the cause of labour rights. While that is a
very crucial component of the freedom protected under Article 19(1)(c), the
provision also protects the freedom to engage in other forms of association
to realize all forms of expression protected under Article 19(1)(a).
221. In Roberts v. United States Jaycees,195 the US Supreme Court
read ‘freedom of association’ widely to include the freedom to form
intimate associations. The factual matrix before the Court was that regular
membership to the respondent-corporation was restricted to men between the
ages of ﬁfteen to thirty-ﬁve. Associate membership was oﬀered to those to
whom regular membership was not available. Complaints were ﬁled alleging
that the exclusion of women from full membership violated the Minnesota
Human Rights Act which made it discriminatory to deny to any person
the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of a place of public accommodation
because of race, color, creed, religion, disability, national origin or sex. The
US Supreme Court had to decide if any interference with the organization’s
membership policy would violate the respondent’s freedom of association
guaranteed under the First Amendment. Justice Brennan, writing for the
majority, observed that the freedom of association constitutes two facets.
First, the freedom to enter into intimate human relationships secure from
undue state interference (“the intrinsic element”); and second, the freedom to

195 468 U.S 609 (1984)
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form associations to engage in activities protected by the First Amendment
such as speech, assembly, and the exercise of religion (“the instrumental
element”). The Court observed that individuals have the freedom to form
intimate associations because individual liberty can be secured only when
the State does not unjustiﬁably interfere with the formation and preservation
of certain kinds of highly personal relationships. The Constitution protects
such relationships because individuals draw emotional enrichment from
close ties such as those created by marriage, children, and cohabitation,
which contribute towards identity building and self-development. Justice
Brenan qualiﬁed the freedom by observing that only personal relationships
(which are characterized by their attributes such as relative smallness, a high
degree of selectivity in decisions to begin and maintain the aﬃliation, the
seclusion from others in critical aspects of the relationship) are protected. 196
222. Kenneth L. Karst, who developed the idea of the freedom of
intimate association197 argues that the Courts have traditionally not permitted
the State to interfere or regulate in certain kinds of personal relationships,
thereby elevating it to a distinct freedom. Intimate association is characterized
by a sense of collectivity which exists beyond two individuals. One of the
prominent ideas embraced by the freedom of intimate association is the
opportunity it aﬀords to enjoy the society of the other person who is a part
of the relationship and the ability to choose to form and maintain such a
relationship.198 The opportunity to enjoy the society of one’s partner may
be denied either directly or indirectly. It could be denied directly when
the law prohibits such an association. The operation of Section 377 of the
IPC criminalizing homosexual activity is a form of direct restriction on the
freedom of association.
223. On the other hand, the State could indirectly infringe upon the
freedom when it does not create suﬃcient space to exercise that freedom.
A formal associational status or recognition of the association is necessary

196 The right to form an intimate association has been expanded upon by the Supreme
Court of US in Lawrence v. Texas, 539 U.S 558 (2003) by which the sodomy laws
were held unconstitutional.
197 Kenneth L Karst, The freedom of intimate association, (1980) The Yale Law Journal,
Vol. 89 (4) 624-692
198 ibid
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for the free and unrestricted exercise of the freedom to form intimate
associations. Needless to say, there may be reasonable restrictions on this
right. However, other than legally valid and binding restrictions, the right
to intimate associations must be unrestricted. The State by not endorsing
a form of relationship encourages certain preferences over others.199 In a
previous segment of this judgment, we have discussed the tangible and
intangible beneﬁts of recognizing relationships in the form of marriage.
While the tangible beneﬁts of marriage are traceable to the content of law,
the intangible beneﬁts are secured merely because State recognises the
relationship through the instrument of law. Intangible beneﬁts in the form
of expressive advantages exist irrespective of the content of the law. Even
if the law does not grant any special material beneﬁts to a relationship,
the relationship would still be considered to be legitimate in the eyes of
the society. The freedom to choose a partner and the freedom to enjoy
their society which are essential components of the right to enter into a
union (and the freedom of intimate association) would be rendered otiose
if the relationship were to be discriminated against. For the right to have
real meaning, the State must recognise a bouquet of entitlements which
ﬂow from an abiding relationship of this kind. A failure to recognise such
entitlements would result in systemic discrimination against queer couples.
Unlike heterosexual couples who may choose to marry, queer couples are
not conferred with the right to marry by statute. To remedy this, during the
course of the hearing, the Solicitor General of India made a statement that
a Committee chaired by the Cabinet Secretary will be constituted to set out
the rights which will be available to queer couples in unions. The Committee
shall set out the scope of the beneﬁts which accrue to such couples.
II. The right to settle in any part of India
224. Article 19(1)(e) of the Constitution stipulates that all citizens
shall have the right to reside and settle in any part of the territory of India.
In exercise of this right, citizens may reside in any village, town, or city
in any state or union territory irrespective of the state in which they were
born or are domiciled. Article 19(1)(e) proscribes diﬀerentiation on the

199 Evan Gerstmann, Same-sex marriage and the Constitution, (Cambridge University
Press 2017)
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basis of the native place of a person. As with other fundamental rights, it is
subject to reasonable restrictions. In Maneka Gandhi v. Union of India,200
this Court observed that it was a historical fact that there were rivalries
between some states in the country. It was therefore not beyond the realm
of possibility that a particular state would restrain individuals domiciled
in another state from residing or settling in the ﬁrst state. In view of this,
the Court held that the intention behind Article 19(1)(d) (the right to move
freely throughout the territory of India) and Article 19(1)(e) was to prevent
the states from imposing such restrictions. In this way, the provision was
thought to emphasize the unity and oneness of India.
225. Article 19(1)(e) uses the expressions “reside” and “settle.”
The term “reside” can mean either a temporary residence or a permanent
residence but there is a certain level of permanency attached to the word
“settle” in India. One can reside in a particular place in the course of their
education or employment but to settle down in that place means to build
one’s life there and reside their permanently.201 In P. Ramanatha Aiyar’s
Law Lexicon (1997 edition), it is stated:
“The word “settled” has no precise or determinate meaning. In popular
language, it intends going into a town or place to live and take up
one’s abode. A person is said to be settled where he has his domicile
or home.”
Colloquially, people say that a person has “settled down” when they
are well established in their careers or when they have chosen a life partner
or married somebody.
226. Citizens of India have the right to settle in any part of the territory
of India in terms of Article 19(1)(e). They, like all other citizens, may
exercise this right in two ways:
a. First, they may build their lives in a place of their choosing (in
accordance with law) either by themselves or with their partner.
They may reside in that place permanently (subject to other

200 (1978) 1 SCC 248
201 The term “settle down” has previously been used by this Court in this sense. See, for
instance, Pradeep Jain v. Union of India, (1984) 3 SCC 654
1360 SUPREME COURT REPORTS [2023] 16 S.C.R.

reasonable restrictions including those intended to protect the
rights of tribal communities). This right is uniquely signiﬁcant
to persecuted groups (such as queer persons, inter-caste couples,
or interfaith couples) who migrate from their hometowns to other
places in the country, including cities;202 and
b. Second, they may “settle down” with another person by entering
into a lasting relationship with them. In fact, this mode of the
exercising the right under Article 19(1)(e) is encompassed by
the ﬁrst mode because to many people, building a life includes
choosing their life partner.
Hence, the right to enter into a union is also grounded in Article 19(1)
(e).
c. Facets of the right to life and liberty under Article 21
I. The atypical family
227. One’s natal family usually consists of one’s immediate relatives.
The people who constitute one’s ‘immediate relatives’ vary from society to
society. For instance, many Indians grow up in a Hindu Undivided Family
which is commonly known as a ‘joint family’ and which is recognised by the
law. The family is typically thought of as comprising a mother and a father,
to which a life partner is added (usually in a heterosexual relationship). Later,
children join this family, and so the cycle continues. While this conception
of a family dominates our collective understanding, it is not the only valid
mode by which a family can be formed. Myriad persons do not follow this
blueprint for the creation of a family. They instead have their own, atypical
blueprint.
In Deepika Singh (supra), this Court rightly acknowledged the
existence of atypical families:
“26. The predominant understanding of the concept of a “family” both
in the law and in society is that it consists of a single, unchanging unit
with a mother and a father (who remain constant over time) and their
children. This assumption ignores both, the many circumstances which

202 Purayil (n 96)
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may lead to a change in one’s familial structure, and the fact that many
families do not conform to this expectation to begin with. Familial
relationships may take the form of domestic, unmarried partnerships
or queer relationships. A household may be a single parent household
for any number of reasons, including the death of a spouse, separation,
or divorce. Similarly, the guardians and caretakers (who traditionally
occupy the roles of the “mother” and the “father”) of children may
change with remarriage, adoption, or fostering. These manifestations
of love and of families may not be typical but they are as real as their
traditional counterparts. Such atypical manifestations of the family unit
are equally deserving not only of protection under law but also of the
beneﬁts available under social welfare legislation. The black letter of
the law must not be relied upon to disadvantage families which are
diﬀerent from traditional ones.”
229. Queer relationships may constitute one’s family. Persons in
such relationships are fulﬁlling their innate and human need to be a part
of a family and to create their family. This conception of a family may be
atypical but its atypical nature does not detract from the fact that it is a family.
Further, queer persons are often rejected by their natal families and have
only their partner or their chosen community to fall back on. In addition
to the diﬀerent forms of kinship recognized in Deepika Singh (supra), the
guru-chela bond of transgender persons (discussed in the previous section
of this judgment) may also be a familial bond. Unlike hijras who often
have the option of joining the hijra community and forming the guru-chela
bond, transmen do not have traditions or customs which may lead to the
creation of non-biological familial bonds with other transmen as a group.
Regardless, they form close bonds with other transmen and many consider
these bonds to be familial.203 These atypical manifestations of the family
unit equally constitute the fundamental groups of society. The Constitution
accounts for plural identities and values. It protects the right of every person
to be diﬀerent. Atypical families, by their very nature, assert the right to be
diﬀerent. Diﬀerence cannot be discriminated against simply because it exists.
Articles 19 and 21 protect the rights of every citizen and not some citizens.

203 Purayil (n 96)
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230. Some petitioners have suggested that the atypical family is a queer
person’s ‘chosen family.’ Chosen families comprise people who are selected
to be one’s kin, with the exercise of one’s agency.204 Some have argued that
the entire spectrum of queer relationships in India may not always be based
on choice, with guru-chela relationships often assigned rather than chosen.205
Hence, while some queer relationships may accurately be described as the
‘chosen family,’ all of them are the ‘atypical family.’
II. The right to dignity, autonomy, and privacy
231. It is not only formal freedom which is signiﬁcant but also
substantive freedom or the opportunity to achieve what one sets out to
achieve and the conditions which enable this. The freedom guaranteed under
the Constitution is realised in substance only when the conditions for their
eﬀective exercise are created. Formal freedom is translated into substantive
freedom through the formulation of schemes and policies. When citizens
are prevented from exercising their rights, the courts of the country create
the conditions for their exercise by giving eﬀect to the laws enacted by the
legislative wing or the schemes formulated by the executive wing. In the
process, courts interpret the Constitution and the rights and freedoms it
recognizes. This exercise lies at the core of Article 21 of the Constitution,
which guarantees the right to life and personal liberty.
232. A few paragraphs ago, this Court discussed what it means to be
human. The question of what it means to be free – or to have liberty – is of
equal signiﬁcance. It is a question which has plagued philosophers, ethicists,
and economists alike. The answer may mean diﬀerent things to diﬀerent
people and may change depending on the circumstances in which the
question is asked. Simply put, the ability to do what one wishes to do and be
who one wishes to be (in accordance with law) lies at the heart of freedom.
233. Article 21 is available to all persons including queer persons.
Article 21 encompasses the rights to dignity, autonomy, and privacy. Each
of these facets animates the others. It is not possible to speak of the right
to enter into a union without also speaking of the right to intimacy, which

204 See generally, Kath Weston, Families We Choose: Lesbians, Gays, Kinship
(Columbia University Press 1997)
205 Reddy (n 81)
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emanates from these rights. These rights demand that each individual be
free to determine the course of their life, as long as their actions are not
barred by law. Choosing a life partner is an integral part of determining
the course of one’s life. Most people consider this decision to be one of
the most important decisions of their lives – one which deﬁnes their very
identity. Life partners live together, spend a signiﬁcant amount of time with
one other, merge their respective families, create a family of their own, care
for each other in times of sickness, support one another and much more.
Hence, the ability to choose one’s partner and to build a life together goes
to the root of the right to life and liberty under Article 21. Undoubtedly,
many persons choose not to have a life partner – but this is by choice and
not by a deprivation of their agency. The law constrains the right to choose a
partner in certain situations such as when they are within prohibited degrees
of relationships or are in a consanguineous relationship.
234. Principle 24 of the Yogyakarta Principles (on the application of
international human rights law in relation to sexual orientation and gender
identity)206 states that all people have the right to found a family:
“Everyone has the right to found a family, regardless of sexual
orientation or gender identity. Families exist in diverse forms. No
family may be subjected to discrimination on the basis of the sexual
orientation or gender identity of any of its members.”
While India is not a signatory to the Yogyakarta Principles, this Court
has recognized their relevance to the adjudication of cases concerning sexual
minorities.207 Depriving someone of the freedom to choose their life partner
robs them of their autonomy, which in turn is an aﬀront to their dignity.
Preventing members of the LGBTQ community from entering into a union
also has the result of denying (in eﬀect) the validity of their sexuality because
their sexuality is the reason for such denial. This, too, would violate the
right to autonomy which extends to choosing a gender identity and sexual
orientation. The act of entering into an intimate relationship and the choices
made in such relationships are also protected by the right to privacy. As held
by this Court in Navtej (supra) and Justice KS Puttaswamy (9J) (supra),

206 “Yogyakarta Principles”
207 NALSA (supra); Navtej Singh Johar (supra)
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the right to privacy is not merely the right to be left alone but extends to
decisional privacy or privacy of choice.
III. The right to health
235. The right to health is also a crucial component of the right to life
and liberty.208 The health of a person includes both, their physical and their
mental wellbeing. Parliament enacted the Mental Healthcare Act 2017209
to regulate the provision of mental healthcare services. An assessment of
the mental health of a person cannot be limited to considering whether
they have a mental illness or disease but must also include an assessment
of whether their mental health is thriving. The Constitution of the World
Health Organization declares that:
“Health is a state of complete physical, mental and social well-being
and not merely the absence of disease or inﬁrmity.”
Mental health is therefore a state of complete mental wellbeing and
not merely the absence of mental illnesses. Parliament is also cognizant of
this fact as evident from the overall scheme and provisions of the Mental
Healthcare Act. Though this statute is primarily concerned with mental
illnesses and access to healthcare, Chapter VI recognizes the value of
complete mental wellbeing by providing for the promotion of and awareness
about mental health. A person’s mental well-being can only be secured if they
are allowed the freedom and liberty to make choices about their lives. If their
choices are restrained, their overall mental well-being would undoubtedly
be degraded. Choices may be restrained by expressly denying them their
freedom or by failing to create conditions for the exercise of such freedom.
236. The right of queer persons to access mental healthcare is
recognized by Section 18 which stipulates that persons have a right to
access mental healthcare without being discriminated against on the basis
of their sex, gender, or sexual orientation. This is undoubtedly a progressive
step in line with constitutional ideals. The mental health of members of
the LGBTQ community may suﬀer not only because of the discrimination
they may face at the hands of their families or society in general but also

208 Common Cause v. Union of India, (2018) 5 SCC 1; Union of India v. Moolchand
Kharaiti Ram Trust, (2018) 8 SCC 321
209 “Mental Healthcare Act”
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because they are prevented from choosing their life partner and entering into
a meaningful, long-lasting relationship with them. The eﬀect of the right to
life under Article 21 read with Section 18 of the Mental Healthcare Act is
that queer people have the right to complete mental health, without being
discriminated against because of their sex, gender, or sexual orientation. A
natural consequence of this is that they have the right to enter into a lasting
relationship with their partner. They also have a right not to be subjected to
inhumane and cruel practices or procedures.
237. The right to freedom of conscience under Article 25
Article 25(1) of the Constitution is as follows:
“25. Freedom of conscience and free profession, practice and
propagation of religion
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practise and propagate
religion.”
Article 25(1) has four components – the ﬁrst component makes the right
available to all persons. The second component indicates that all persons are
equally entitled to the rights it codiﬁes. The third component deals with two
distinct concepts: the right to freedom of conscience and the right freely to
profess, practice and propagate religion. While the freedom of conscience
subsumes within its fold the right to profess, practice and propagate religion,
it is not restricted to this right alone. The rights with respect to religion are
one aspect of the freedom of conscience. The fourth component makes the
rights codiﬁed in Article 25 subject to public order, morality, health, and
the other provisions of Part III. The right under Article 25 is an individual
right because conscience inheres in an individual.210
238. The right under Article 25 is also available to members of the
LGBTQ community since it is available to all persons. But what does this
freedom entail, beyond religious rights? Black’s Law Dictionary deﬁnes
conscience in the following terms:

210 Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019) 11 SCC 1
1366 SUPREME COURT REPORTS [2023] 16 S.C.R.

“Conscience. The moral sense; the faculty of judging the moral
qualities of actions, or of discriminating between right and wrong;
particularly applied to one’s perception and judgment of the moral
qualities of his own conduct, but in a wider sense, denoting similar
application of the standards of morality to the acts of others. The sense
of right and wrong inherent in every person by virtue of his existence
as a social entity. …”211
(emphasis supplied)
239. All persons, including members of the queer community, have
the right to judge the moral quality of the actions in their own lives, and
having judged their moral quality, have the right to act on their judgment in
a manner they see ﬁt. This attribute is of course not absolute and is capable
of being regulated by law. In the segment of this judgment on the right to
life and liberty, this Court noticed that the meaning of liberty is – at its
core – the ability to do what one wishes to do and be who one wishes to
be, in accordance with law. All persons may arrive at a decision regarding
what they want to do and who they want to be by exercising their freedom
of conscience. They may apply their sense of right and wrong to their lives
and live as they desire, in accordance with law. Some of the decisions the
moral quality of which they will judge include the decision on who their life
partner will be and the manner in which they will build their life together.
Each individual is entitled to decide this for themselves, in accordance with
their conscience.
240. The right under Article 25 is subject to four exceptions – public
order, morality, health, and the other provisions of Part III. The respondents
have not demonstrated that public order will be in peril or that the health
of the public at large or of individuals will be adversely impacted, if queer
persons enter into a union with their partners. As for morality, it is settled law
that Article 25 speaks of constitutional morality and not societal morality.
In Indian Young Lawyers Assn. v. State of Kerala,212 a ﬁve-Judge Bench
of this Court (of which one of us, DY Chandrachud, J. was a part) held:

211 Black’s Law Dictionary (5th edn.; 1979)
212 (2019) 11 SCC 1
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“Morality for the purposes of Articles 25 and 26 cannot have an
ephemeral existence. Popular notions about what is moral and what is
not are transient and ﬂeeting. Popular notions about what is or is not
moral may in fact be deeply oﬀensive to individual dignity and human
rights. Individual dignity cannot be allowed to be subordinate to the
morality of the mob. Nor can the intolerance of society operate as a
marauding morality to control individual self-expression in its manifest
form. … The expression has been adopted in a constitutional text and
it would be inappropriate to give it a content which is momentary or
impermanent. Then again, the expression ‘morality’ cannot be equated
with prevailing social conceptions or those which may be subsumed
within mainstream thinking in society at a given time. … The content
of morality is founded on the four precepts which emerge from the
Preamble. The ﬁrst among them is the need to ensure justice in its
social, economic and political dimensions. The second is the postulate
of individual liberty in matters of thought, expression, belief, faith
and worship. The third is equality of status and opportunity amongst
all citizens. The fourth is the sense of fraternity amongst all citizens
which assures the dignity of human life.”
Hence, the content of morality must be determined on the basis of the
preambular precepts of justice, liberty, equality, and fraternity. None of these
principles are an impediment to queer persons entering into a union. To the
contrary, they bolster the proposition that queer persons have the right to
enter into such a relationship. Finally, the other provisions in Part III (which
may also restrict the exercise of the right under Article 25) do not act as a
bar to the exercise of the right in the present case. Similar to the preambular
values, they give rise to the right to enter into a union.
241. A union may emerge from an abiding, cohabitational relationship
of two persons – one in which each chooses the other to impart stability
and permanence to their relationship. Such a union encapsulates a sustained
companionship. The freedom of all persons (including persons of the queer
community) to form a union was recognised by this Court in Navtej (supra):
“167. … There can be no doubt that an individual also has a right to
a union under Article 21 of the Constitution. When we say union, we
do not mean the union of marriage, though marriage is a union. As a
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concept, union also means companionship in every sense of the word,
be it physical, mental, sexual or emotional. The LGBT community
is seeking realisation of its basic right to companionship, so long as
such a companionship is consensual, free from the vice of deceit,
force, coercion and does not result in violation of the fundamental
rights of others.”
Such a union has to be shielded against discrimination based on gender
or sexual orientation.
242. In K.S. Puttaswamy (Privacy-9J.) v. Union of India,213 one of
us (Dr. DY Chandrachud, J.) held that discrimination against an individual
on the basis of sexual orientation is oﬀensive to their dignity and self-worth:
“144. … Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or way
of life does not accord with the “mainstream”. Yet in a democratic
Constitution founded on the Rule of Law, their rights are as sacred
as those conferred on other citizens to protect their freedoms and
liberties. … Discrimination against an individual on the basis of
sexual orientation is deeply oﬀensive to the dignity and self-worth
of the individual. Equality demands that the sexual orientation of
each individual in society must be protected on an even platform.
The right to privacy and the protection of sexual orientation lie at the
core of the fundamental rights guaranteed by Articles 14, 15 and 21
of the Constitution.”
(emphasis supplied)
243. This Court recognized that equality demands that queer persons
are not discriminated against. An abiding cohabitational relationship which
includes within its fold a union of two individuals cannot be discriminated
against on the basis of sexual orientation. Material and expressive
entitlements which ﬂow from a union must be available to couples in
queer unions. Any form of discrimination has a disparate impact on queer
couples who unlike heterosexual couples cannot marry under the current
legal regime.

213 (2017) 10 SCC 1
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244. As a consequence of the rights codified in Part III of the
Constitution, this Court holds that all persons have a right to enter into an
abiding union with their life partner. This right, undoubtedly, extends to
persons in queer relationships. At this juncture, it is necessary to clarify the
diﬀerence between relationships and unions of the kind which this Court
speaks of, and unions and marriages. Any person may enter into a consensual
romantic or sexual relationship with another person. This may last for a few
months or for years. Regardless of the period for which the relationship
continues, no legal consequences attach to it, except where provided by law
(such as in terms of the DV Act). However, when two persons enter into a
union with a person whom they consider to be their life partner, certain legal
consequences will follow. For instance, if one of them happens to die, their
partner will have the right to access the body of the deceased.
x. Restrictions on the right to enter into a union
a. The right to enter into a union cannot be restricted based on sexual
orientation
245. In Navtej (supra), the concurring opinion authored by one of us
(Justice DY Chandrachud) noted that Article 15 prohibits discrimination,
direct or indirect, which is founded on a stereotypical understanding of
the role of sex. It was observed that the usage of the word ‘sex’ in Article
15(1) encapsulates stereotypes based on gender. The judgment expanded
on this understanding of the provision by holding that sexual orientation is
also covered within the meaning of ‘sex’ in Article 15(1) because (i) non-
heterosexual relationships question the male-female binary and gendered
roles which are attached to them; and (ii) discrimination based on sexual
orientation indirectly discriminates based on gender stereotypes which
is prohibited by Article 15. Thus, a law which, directly or indirectly,
discriminates based on sexual orientation is constitutionally suspect. In
Navtej (supra), Justice Indu Malhotra observed that Article 15(1) prohibits
discrimination based on sexual orientation because it is analogous to the
other grounds on which discrimination is prohibited. The learned Judge
observed that the common thread which runs through the grounds mentioned
in Article 15 is that they impact the personal autonomy of an individual.
246. We ﬁnd it necessary to supplement the observations of this
Court in Navtej (supra) on the impermissibility of discrimination based
1370 SUPREME COURT REPORTS [2023] 16 S.C.R.

on sexual orientation. The causal relationship between homophobia and
gender stereotypes is not the only constitutional approach to grounding
the prohibition of discrimination based on sexual orientation in Article 15.
Subsuming the discrimination faced by queer persons into the sex-gender
debate runs the risk of being reductionist. Gender theory only captures one
part of the complex construction of sexual deviance. Over-emphasizing
gender norms as a reason for the discrimination faced by the queer
community will be at the cost of reducing their identity.
247. At this juncture, it is important to address the argument of the
learned Solicitor General that Article 15 of the Constitution does not include
sexual orientation because it is not an ‘ascriptive’ characteristic since there
is a degree of ‘choice’ in identifying as a queer person. This submission is
premised on the erroneous understanding that the common thread which runs
through the grounds mentioned in Article 15 is that they are all ascriptive
characteristics.
248. Article 15 of the Constitution states that no citizen shall be
discriminated against based on “religion, race, sex, place of birth, or
any of them.” Ascribed status is described to be “assigned to individuals
without reference to their innate diﬀerences or abilities” and achieved
status is described as “acquiring special qualities” and “open to individual
achievement.”214 Thus, characteristics attained on birth are termed as
ascribed status and characteristics or qualities achieved after birth are termed
as achieved status. Before proceeding further, a preliminary point must be
made. Status is not a biological phenomenon. It is a social phenomenon.215
The status of a person is identiﬁed based on how a person is perceived. It
depends on how the society (conditioned by social norms) sees an individual
as a part of a group.
249. This Court has in many judgments held that caste is an ascribed
status.216 The argument of Dr Abhishek Manu Singhvi that Article 15

214 Ralph Linton, The Study of Man: An introduction (1936)
215 Irving S. Falodare, A Clariﬁcation of “Ascribed Status” and “Achieved Status”, The
Sociological Quarterly, Vol. 10, No. 1 (Winter, 1969), pp 53-61
216 See Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125; Ashoka Kumar Thakur v.
Union of India, (2008) 6 SCC 1; Indian Medical Assn. v. Union of India, (2011) 7
SCC 179; Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
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prohibits discrimination on the ground of sexual orientation because it
is an ascribed characteristic, and the argument of the learned Solicitor
General that sexual orientation is not a ascribed characteristic (and is thus,
not protected under Article 15) fails to give eﬀect to the full purport of the
anti-discrimination principle encompassed in Article 15. A core diﬀerence
between ascribed and achieved status is that the former is considered to be
irreversible (where a person is born with it) but the latter is reversible.217
The assumption that Article 15 only protects the status that a person is
born with and not an identity they choose runs the risk of viewing persons
as helpless individuals. It also misses the crucial point that a person who
chooses an identity can also be discriminated against. A few of the grounds
stipulated in Article 15 may be reversed by the exercise of choice. For
example, persons undergo sex-reassignment surgeries to alter their body to
align it with their gender. When a person wishes to choose a diﬀerent label
for their gender, they face other forms of discrimination and stigma diﬀerent
from the discrimination that they faced earlier. Merely because a person by
exercise of choice changes their sex, it cannot be argued that the protection
provided under Article 15 is not available to them.
250. The Court must also be conscious of the fact that a person may
face discrimination both due to their chosen identity and imposed identity.
For example, even after a person changes their religion, it is possible that
they face discrimination due to their new religious identity and their old caste
or religious identity. This is not to say that all persons choose to change the
characteristics that they are born with. While a few people by exercising their
choice (successfully and unsuccessfully) alter what is assumed by the society
to be their ascribed status, a few others may not wish to change their trait.
251. The discussion above clearly elucidates that the distinction
between ascribed and achieved status is not as clear-cut as it may seem.
The understanding of Article 15(1) cannot be premised on the distinction
between ascribed and achieved status. Such an understanding does not
truly capture the essence of the anti-discrimination principle. The anti-
discrimination principle incorporated in Article 15 identiﬁes grounds on
the basis of which a person shall not be discriminated. These grounds

217 Ibid.
1372 SUPREME COURT REPORTS [2023] 16 S.C.R.

are markers of identity. The reason for constitutionally entrenching these
ﬁve markers of identity (that is, religion, caste, race, sex, and place of
birth) is that individuals (and groups) have historically and socially been
discriminated against based on these markers of identities. These identities
must be read in their historical and social context instead of through the
narrow lens of ascription.
252. When Article 15 is read in the broader manner indicated above, the
word “sex” in Article 15 of the Constitution takes within its meaning “sexual
orientation” not only because of the causal relationship between homophobia
and sexism but also because ‘sex’ is used as a marker of identity. The word
‘sex’ cannot be read independent of the social and historical context. Thus,
‘sex’ in Article 15 includes within its fold other markers of identity which
are related to sex and gender such as sexual orientation. Thus, a restriction
on the right to enter into a union based on sexual orientation would violate
Article 15 of the Constitution.
b. Recognizing the right of queer persons to enter into a union will
not lead to social chaos
253. The Union of India submitted that if non-heterosexual couples are
permitted to enter into a union, then the State will also have to extend the
right to incestuous, polygamous, or polyandrous relationships. To answer
this question, this Court has to deal with the issue of whether the State has
the power to place restrictions on the right to enter into a union and if so,
what is the extent of such restrictions.
254. The right to enter into a union like every other fundamental right
can be restricted by the State. It is now established that the Courts must use
the four-prong proportionality test to assess if the infringement or restriction
of a right is justiﬁed.218 The courts must use the integrated proportionality
standard formulated in Akshay N Patel v. Reserve Bank of India219 to test
a violation of the right to enter into a union because the right is traceable
to more than one provision of Part III. However, if the State restricts the
right or has the eﬀect of restricting the right (both directly and indirectly)

218 See Modern Dental College & Research Centre v. State of Madhya Pradesh, (2016)
4 SCC 346; Puttaswamy (9J) (supra)
219 Civil Appeal No. 6522 of 2021
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based on any of identities mentioned in Article 15, such a restriction would
be unconstitutional.
255. We do not accept the argument of the Union of India that
permitting non-heterosexual unions would lead to allowing incestuous,
polyandrous, and polygamous unions for all communities (the personal
laws of some religious and trial communities currently permit polygamy
or polyandry). The restriction on the ground of sexual orientation will
violate Article 15 of the Constitution. On the other hand, the restriction
on incestuous, polygamous or polyandrous unions would be based on the
number of partners and the relationships within the prohibited degree. The
Court in that case will determine if the State’s interest in restricting the right
based on the number of partners and prohibited relationships is proportionate
to the injury caused due to the restriction of choice. In view of the discussion
above, a restriction based on a marker of identity protected by Article 15
cannot be equated to a restriction based on the exercise of choice. For this
reason, we ﬁnd that the apprehension of the Union of India is unfounded
when tested on constitutional principles.
xi. The right of transgender persons to marry
256. Some petitioners have sought a declaration that the right to marry
a person of their choice applies to transgender persons. The Union of India
seems to have a mixed response to this claim. On one hand, it asserts that
marriage must only be between ‘biological’ men and ‘biological’ women.
On the other hand, the written submissions of the learned Attorney General
state that “The issues relating to transgender persons arising out of The
Transgender Persons (Protection of Rights) Act, 2019 stand on a diﬀerent
footing and can be addressed without reference to the Special Marriage
Act.” Before addressing the issue, it is necessary to brieﬂy advert to the
diﬀerence between sex, gender, and sexual orientation, as well as to note
the development of the law in relation to transgender persons.
a. Sex, gender, sexual orientation
257. The term ‘sex’ refers to the reproductive organs and structures that
people are born with.220 Intersex persons are those whose sex characteristics

220 “Sex.” Merriam-Webster.com Dictionary, Merriam-Webster <https://www.merriam-
webster.com/dictionary/sex>
1374 SUPREME COURT REPORTS [2023] 16 S.C.R.

do not ﬁt the typical notions of ‘male’ and ‘female.’221 Sex and gender are
not the same. The Yogyakarta Principles describe one’s gender identity as:
“each person’s deeply felt internal and individual experience of gender,
which may or may not correspond with the sex assigned at birth,
including the personal sense of the body (which may involve, if freely
chosen, modiﬁcation of bodily appearance or function by medical,
surgical or other means) and other expressions of gender, including
dress, speech and mannerisms.”222
The gender of a person may not correspond to the sex they were
assigned at birth. A transgender person is one whose gender identity does
not conform with their sex. Transgender people may choose to undergo
hormonal therapy or surgery (commonly known as gender aﬃrming surgery
or sex reassignment surgery) to alter their bodies to make them conform to
their gender. People may be transgendered regardless of whether they choose
to or are able to undergo a surgery. As noted in preceding segments of this
judgment, the term ‘transgender’ does not fully capture the rich variation in
gender identities in India. Historically and socio-culturally, Indian persons223
with a genderqueer identity go by diﬀerent names including hijras, kothis,
aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis. Persons
who are known by these names may identify as male, female, or the ‘third
gender.’ Intersex persons are not the same as transgender persons. They
have atypical reproductive characteristics. Intersex people may identify as
male, female, or transgender.
258. Sexual orientation differs from both sex and gender. The
Yogyakarta Principles describe sexual orientation as:
“each person’s capacity for profound emotional, aﬀectional and sexual
attraction to, and intimate and sexual relations with, individuals of a
diﬀerent gender or the same gender or more than one gender.” 224

221 ‘Intersex people,’ Oﬃce of the United Nations High Commissioner for Human
Rights <https://www.ohchr.org/en/sexual-orientation-and-gender-identity/intersex-
people>
222 Introduction to the Yogyakarta Principles, Yogyakarta Principles
223 As also persons in other South Asian countries
224 Ibid
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The sex of a person is determined by their reproductive organs
and structure, their gender identity depends on their internal experience
of gender, and their sexual orientation is deﬁned by the gender of the
people that they are attracted to. The present batch of petitions seeks the
recognition of the right of persons to marry regardless of their gender
identity or sexual orientation. While previous segments of this judgment
dealt with the rights of all persons regardless of gender identity or sexual
orientation, this segment deals exclusively with the rights of persons who
are transgender or intersex.
b. The judgment of this Court in NALSA and the Transgender Persons
Act
259. The judgment of this Court in NALSA (supra) recognized the
right of transgender persons to be identiﬁed by the gender identity of their
choice, as well as their right to full protection under the Constitution, on
equal terms with any other citizen of the country. The government was
enjoined to recognize what the Court termed the ‘third gender.’ The Court
also noticed the absence of a suitable legislation dealing with the rights
of the transgender community. It issued directions to the Union and State
Governments to take steps to ensure that the transgender community was
able to realize its rights to the fullest extent. The judgment in NALSA (supra)
was aﬃrmed by this Court in Justice KS Puttaswamy (supra) and again,
in Navtej (supra). The judgement in NALSA (supra) was critiqued for
generalizing the gender identities of hijras as belonging to the third gender
alone.225 The directions at paragraphs 135.1 and 135.2 of NALSA (supra)
must be read as recognizing the right of all transgender persons (including
hijras and those who are socio-culturally known by other names) to be
recognized by a gender of their choice.
260. In 2019, Parliament enacted the Transgender Persons Act to
provide for the rights of transgender persons and their welfare. This statute
proscribes discrimination against transgender persons, 226 provides for a

225 H.R. Vasujith Ram, ‘Combatting Exclusions through Law: Rights of Transgender
People in India’, in Zoya Hasan, and others (eds), The Empire of Disgust: Prejudice,
Discrimination, and Policy in India and the US (Delhi, 2018; online edn., OUP 2019)
226 Chapter II, Section 9
1376 SUPREME COURT REPORTS [2023] 16 S.C.R.

system by which their identity may be recognized,227 prescribes that the
appropriate government shall take welfare measures,228 recognizes the
right of residence229 and provides for the obligations of various parties
with respect to their right to education, social security, and health. 230 It also
creates a National Council for Transgender Persons.231 A challenge to the
constitutional validity of the Transgender Persons Act is pending before a
diﬀerent Bench of this Court. We leave the challenge to the validity of the
statute to be decided in that or any other appropriate proceeding.
261. During the course of the hearings, the Solicitor General advanced
the argument that the Transgender Persons Act prohibits discrimination
against any member of the queer community and that consequently, the
queer community in India no longer faces any stigma due to their gender
identity or sexual orientation. He argued that the Transgender Persons Act is
a broad-based legislation which includes all persons of the queer community
within its ambit. This argument does not hold any water. The legislation
applies only to persons with a genderqueer or transgender identity and not
to persons whose sexual orientation is not heterosexual. This is evident from
the deﬁnition of a transgender person as:
“…a person whose gender does not match with the gender assigned to
that person at birth and includes trans-man or trans-woman (whether
or not such person has undergone Sex Reassignment Surgery or
hormone therapy or laser therapy or such other therapy), person with
intersex variations, genderqueer and person having such socio-cultural
identities as kinner, hijra, aravani and jogta.”232
From the deﬁnition, it is clear that the enactment applies to persons
whose gender does not match with that assigned to them at birth, which
includes:

227 Chapter III
228 Chapter IV
229 Section 12
230 Chapter VI
231 Chapter VII
232 Section 2(k), Transgender Persons Act
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a. Transgender men and women;
b. Intersex persons;
c. Other genderqueer persons; and
d. Persons with socio-cultural identities such as hijras.
The word ‘genderqueer’ in Section 2(k) does not refer to sexual
orientation but to gender identity. As discussed in the preceding paragraphs,
gender identity is not the same as sexual orientation. The term ‘transgender’
is not commonly understood as referring to persons with a sexual orientation
other than heterosexual, nor does the Transgender Persons Act use the
word ‘transgender’ to include persons of a diﬀerent sexuality. The Union
of India’s argument that the Transgender Persons Act applies to all queer
persons including persons who are homosexual, bisexual etc. cannot be
accepted. This legislation is clearly applicable only to those people with a
gender identity that does not match the one assigned at birth.
262. It is incorrect to state that transgender persons do not face any
stigma or discrimination post-2020, when the Transgender Persons Act
came into force. Enacting a statute does not have the same eﬀect as waving
a magic wand. For instance, the prohibition against discrimination has not
resulted in society abstaining from discrimination overnight. The ground
reality is that society continues to discriminate against transgender persons
in various ways. Consistent respect for the rights of transgender persons
may someday ensure that they are treated as equals (as is their right) but
that day is yet to arrive. Hence, the contention of the Union of India that
transgender people are no longer stigmatized in view of the enactment of the
Transgender Persons Act cannot be accepted. Since the legislation does not
apply to homosexual persons or persons of other sexual orientations, there
is no question of such persons being free from discrimination or violence
as a result of its enactment.
263. Pursuant to the decision in NALSA (supra), Parliament enacted
the Transgender Persons Act which aims to give substance to the rights
recognized by this Court in its judgment. However, no such statute was
forthcoming pursuant to the decision in Navtej (supra). Although the
primary issue in Navtej (supra) was whether Section 377 of the IPC was
constitutional, the ruling of this Court made it amply clear that sexual
1378 SUPREME COURT REPORTS [2023] 16 S.C.R.

orientation cannot be a valid ground for discrimination or hostile treatment.
The decision in Navtej (supra) was a clear indication of the fact that the
LBGTQ community is entitled to equal treatment before law. Parliament is
yet to enact a law to this eﬀect. This Court is of the opinion that there is an
urgent need for a law which inter alia prohibits discrimination on the basis
of sexual orientation and gives full eﬀect to the other civil and social rights
of LGBTQ persons. In the absence of such a law, members of the LGBTQ
community will be unable to exercise their rights and freedoms to the fullest
extent and will have to approach the courts for their enforcement on a case-
by-case basis. This is not a desirable outcome. As in this case, courts are
not always equipped to deal with all issues which are brought before them.
Even if the courts are institutionally equipped to address the grievances in
the case before them, no citizen should have to institute legal proceedings
for the enforcement of their rights every time they seek to exercise that
right. This would be contrary to the very concept of the guarantee of rights.
c. Transgender persons in heterosexual relationships can marry under
existing law
264. We are in agreement with the submission of the Union of India
that the issue of whether transgender persons can marry ought to be decided
separately from the issues arising under the SMA in relation to homosexual
persons or those of a queer sexual orientation. Parliament has recognized the
rights of the transgender community by enacting the Transgender Persons
Act. This Court is therefore bound to apply this statute while adjudicating
the issue of whether transgender persons can marry under existing law.
I. The right against discrimination under the Transgender Persons
Act
265. The right of transgender persons to equality under the Constitution
and the right against discrimination was recognized by this Court in NALSA
(supra). To be equal means to be able to live without discrimination.
Section 3 of the Transgender Persons Act codiﬁes the prohibition against
discrimination in the following terms:
“3. Prohibition against discrimination. — No person or establishment
shall discriminate against a transgender person on any of the following
grounds, namely: —
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(a) the denial, or discontinuation of, or unfair treatment in, educational
establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare
services;
(e) the denial or discontinuation of, or unfair treatment with regard
to, access to, or provision or enjoyment or use of any goods,
accommodation, service, facility, beneﬁt, privilege or opportunity
dedicated to the use of the general public or customarily available to
the public;
(f) the denial or discontinuation of, or unfair treatment with regard to
the right of movement;
(g) the denial or discontinuation of, or unfair treatment with regard to
the right to reside, purchase, rent, or otherwise occupy any property;
(h) the denial or discontinuation of, or unfair treatment in, the
opportunity to stand for or hold public or private oﬃce; and
(i) the denial of access to, removal from, or unfair treatment in,
Government or private establishment in whose care or custody a
transgender person may be.”
(emphasis supplied)
266. As evident from Clauses (a) to (i), this provision is a catch-all
provision which seeks to eliminate discrimination against the transgender
community both in public as well as private spaces. It is worded in
exceptionally broad terms:
267. The prefatory portion of Section 3 states that “no person
or establishment” shall discriminate against a transgender person.
‘Establishment’ is deﬁned as any body or authority established by or under
a Central Act or a State Act or an authority or body owned or controlled or
aided by the Government or a local authority or a Government company233

233 As deﬁned in Section 2 of the Companies Act, 2013.
1380 SUPREME COURT REPORTS [2023] 16 S.C.R.

and includes a Department of the Government.234 An establishment also
means any company or body corporate or association or body of individuals,
ﬁrm, cooperative or other society, association, trust, agency, or institution.235
‘Establishment’ therefore includes any public or private entity, authority,
or body, including any ‘body of individuals.’ Individuals are, of course,
covered by the word ‘person.’
268. Clauses (a) to (i) of Section 3 list the spheres in which transgender
persons cannot be discriminated against. They include the spheres of
education,236 employment,237 healthcare,238 movement,239 property,240 public
or private oﬃce,241 care and custody.242 It also bars any discrimination
with respect to goods, accommodation, service, facility, beneﬁt, privilege,
or opportunity which is dedicated to the use of the public or customarily
available to the public.243
269. The prefatory portion of Section 3 read with Section 2(b)
delineates who the prohibition against discrimination operates against. In
other words, it deﬁnes the actors who are prohibited from discriminating
against transgender persons. The term ‘establishment’ has been deﬁned
in the broadest possible terms to include all manner of undertakings or
groups of people. Clauses (a) to (i) of Section 3 set forth the content of the
anti-discrimination principle. They describe the actions which amount to
discrimination as well as the sphere in which the discrimination operates.
The actions which amount to discrimination vary depending upon the sphere
they refer to and they include denial, discontinuation, unfair treatment,
termination, and removal. The spheres, too, are broadly deﬁned and extend
to practically every aspect of life. In order to establish a violation of Section
3, an aggrieved person would have to demonstrate:

234 Section 2(b)(i), Transgender Persons Act
235 Section 2(b)(ii), Transgender Persons Act
236 Section 3(a), Transgender Persons Act
237 Section 3(b), 3(c), Transgender Persons Act
238 Section 3(d), Transgender Persons Act
239 Section 3(f), Transgender Persons Act
240 Section 3(g), Transgender Persons Act
241 Section 3(h), Transgender Persons Act
242 Section 3(i), Transgender Persons Act
243 Section 3(e), Transgender Persons Act
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a. That the person against whom they seek a remedy is either an
establishment as deﬁned in Section 2(b) or a person;
b. That they have been discriminated against in one of the spheres
listed by Section 3; and
c. That the discriminatory action corresponds to that sphere (for
example, a person alleging a violation of the right to movement
must prove that there has been a denial, discontinuation of, or
unfair treatment of that right244).
II. Remedies for the infringement of Section 3
270. While Section 18 of the Transgender Persons Act stipulates that
certain actions amount to oﬀences which may attract a penalty between
six months and two years as well as a ﬁne, violations of Section 3 attract
no such penalty. In fact, the Transgender Persons Act does not expressly
provide for a remedy for the infringement of Section 3.
271. Section 8 enjoins the appropriate Government to take steps to
secure “full and eﬀective participation of transgender persons and their
inclusion in society.” Since clauses (a) to (i) of Section 3 are with a view
to ensure the full and eﬀective participation of transgender persons in
all arenas of life, Section 8, properly understood, tasks the appropriate
Government with ensuring that Section 3 is complied with by all whom it
governs. Rule 10(4) of the Transgender Persons (Protection of Rights) Rules
2020245 provides that the appropriate Government shall take adequate steps
to prohibit discrimination in any Government or private organisation, or
private and public educational institution under their purview, and ensure
equitable access to social and public spaces, including burial grounds. Rule
11 of these rules requires the appropriate Government to take adequate steps
to prohibit discrimination in any Government or private organisation or
establishment including in the areas of education, employment, healthcare,
public transportation, participation in public life, sports, leisure and
recreation, and opportunity to hold public or private oﬃce. Under Section
8 read with Rule 10(4) and Rule 11, the appropriate Government has a duty

244 Section 3(f), Transgender Persons Act
245 “Transgender Persons Rules”
1382 SUPREME COURT REPORTS [2023] 16 S.C.R.

not only to prevent discrimination against transgender persons (by persons
and public as well as private establishments) but also to address it where it
is found to take place.
272. Sections 10 the Transgender Persons Act inter alia requires
establishments to comply with the statute. This provision places a duty
on establishments to comply with Section 3 and ensure that they do not
discriminate against transgender persons. Section 11 requires establishments
to set up a grievance redressal mechanism by designating a person as the
complaint oﬃcer to deal with complaints relating to the violation of the
provisions of the statute. Section 11 is one of the ways in which a person
who alleges the violation of the Transgender Persons Act can seek a remedy.
However, Section 11 only goes as far as to provide for a mechanism by which
the establishment in question can be approached for a remedy.
273. As noticed previously, the prohibition against discrimination
operates against public as well as private bodies. If a public body or actor
which falls within the deﬁnition of ‘establishment’ in Section 2(b) of the
Transgender Persons Act infringes Section 3, it is open to the aggrieved
person to invoke the extraordinary jurisdiction of the High Courts under
Article 226 of the Constitution. The High Courts are empowered to issue
directions, order, or writs to any person or authority for the enforcement of
the rights codiﬁed by Part III and for any other purpose. The body which
satisﬁes the deﬁnition in Section 2(b) must be a “person or authority” under
Article 226. The High Courts may exercise their jurisdiction against a body
which is performing a public duty as well.246 While the jurisdiction of this
Court under Article 32 is not as expansive as that of the High Courts under
Article 226, this Court may rely on Section 3 to guide its interpretation of
the law, to enforce the rights recognized by Part III of the Constitution.
274. Aggrieved persons may also approach the High Court under Article
226 for the issuance of a direction, order, or writ against the appropriate
Government directing it to fulﬁl the mandate of Section 8 of the Transgender
Persons Act. As discussed in the preceding paragraphs, Section 8 obligates
the appropriate Government to prevent and address discrimination inter alia

246 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav
Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691; Praga Tools Corpn. v. C.A. Imanual,
(1969) 1 SCC 585
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by private bodies. The High Court may direct the appropriate Government
to perform its duties vis-à-vis private bodies. This is no doubt an imperfect
remedy and there is a need for the Transgender Persons Act to provide for
a remedy for its enforcement, especially Section 3.
III. Harmonious interpretation of the laws governing marriage
and the Transgender Persons Act
275. Section 3 of the Transgender Persons Act prohibits the state from
discriminating against transgender persons. Section 20 of the Transgender
Persons Act indicates that the statute is in addition to, and not in derogation
from any other law for the time being in force. Parliament was no doubt
cognizant of the statutes governing marriage when it enacted the Transgender
Persons Act and Section 3(e) in particular.
276. The laws which govern marriage in the country specify conditions
which the bride and the bridegroom must satisfy for their marriage to be
recognized. This is true of personal laws247 as well as the SMA.248 The
structure of these enactments also regulates marriage between a husband
and a wife.249 They use the words “bride” and “bridegroom,” “wife” and
“husband,” “male” and “female,” or “man” and “woman.” These legislations
regulate heterosexual marriages in India. Laws which are incidental to
marriage such as the DV Act, the Dowry Prohibition Act 1961 or Section
498A of the IPC seek to address the hetero-patriarchal nature of the
relationship between a man and a woman.
277. The gender of a person is not the same as their sexuality. A person
is a transgender person by virtue of their gender identity. A transgender
person may be heterosexual or homosexual or of any other sexuality. If a
transgender person is in a heterosexual relationship and wishes to marry
their partner (and if each of them meets the other requirements set out in the
applicable law), such a marriage would be recognized by the laws governing
marriage. This is because one party would be the bride or the wife in the
marriage and the other party would be the bridegroom or the husband.
The laws governing marriage are framed in the context of a heterosexual

247 See, for instance, Section 5, HMA; Section 60, Indian Christian Marriage Act 1872;
Section 3, Parsi Marriage and Divorce Act 1936
248 Section 4, SMA
249 See, for instance, Section 2, Dissolution of Muslim Marriages Act 1939
1384 SUPREME COURT REPORTS [2023] 16 S.C.R.

relationship. Since a transgender person can be in a heterosexual relationship
like a cis-male or cis-female, a union between a transwoman and a transman,
or a transwoman and a cisman, or a transman and a ciswoman can be
registered under Marriage laws. The transgender community consists of
inter alia transgender men and transgender women. A transgender man has
the right to marry a cisgender woman under the laws governing marriage in
the country, including personal laws. Similarly, a transgender woman has
the right to marry a cisgender man. A transgender man and a transgender
woman can also marry. Intersex persons who identify as a man or a woman
and seek to enter into a heterosexual marriage would also have a right to
marry. Any other interpretation of the laws governing marriage would be
contrary to Section 3 of the Transgender Persons Act and Article 15 of the
Constitution.
278. In Kanailal Sur v. Paramnidhi Sadhu Khan,250 this Court
held that the ﬁrst and primary rule of construction was that the intention
of the legislature must be found in the words used by the legislature itself.
The terms “bride” and “bridegroom,” “wife” and “husband,” “male” and
“female,” and “man” and “woman” in the statutes which regulate marriage
cannot be read as governing marriages between cisgender men and cisgender
women alone. Nothing in these statutes indicates that their intended
application is solely to cisgender men and cisgender women. The plain
meaning of the gendered terms used in these statutes indicates transgender
persons in heterosexual relationships fall within their fold. The contention
of the Union of India that “biological” men and women alone fall within the
ambit of these statutes cannot be accepted. No law or tool of interpretation
supports the interpretation proposed by the Union of India. The provisions
on the prohibited degrees of relationship in the laws governing marriage
continue to apply. The judgment in NALSA (supra) also recognized the
importance of the right of transgender persons to marry. Moreover, State
Governments have formulated and implemented schemes which encourage
and support transgender persons vis-à-vis marriage.251

250 AIR 1957 SC 907
251 For instance, the Kerala State Government announced Rs. 30,000/- by way of
‘marriage assistance’ to couples where at least one person was a transgender person.
Government of Kerala, Social Justice Department, ‘Marriage assistance for legally
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279. In Arunkumar v. Inspector General of Registration,252 the ﬁrst
petitioner was a man and the second petitioner was a woman who happened
to be transgender. They married each other at a temple in Tuticorin and
sought to have their marriage registered by the state, which refused. They
then approached the Madras High Court under its writ jurisdiction. The
Court held that:
a. The expression “bride” in the HMA cannot have a static and
immutable meaning and that statutes must be interpreted in light
of the legal system in its present form; and
b. The fundamental right of the petitioners under Article 25 was
infringed.
The Court directed the concerned respondent to register the marriage
solemnized between the petitioners.
xii. The conditions for the exercise of the rights of LGBTQ persons
a. The right of queer persons under the Mental Healthcare Act
280. The ﬁrst segment of this judgment detailed how the families or
relatives of queer persons compel them to undergo “conversion” therapies
(to “convert” their sexual orientation from homosexual to heterosexual) or
make them marry a person of the opposite sex to “cure” their homosexuality
or for other reasons. Other pseudo-medical treatments are similarly designed
to “cure” queerness. Such practices violate the right to health of queer
persons as also their right to autonomy and dignity. In terms of Article 5 of
the Universal Declaration of Human Rights and Article 7 of the International
Covenant on Civil and Political Rights, no one shall be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. “Conversion”
therapies and other “treatments” which are aimed at altering sexual
orientation amount to cruel, inhuman and degrading treatment of queer
persons. They have the eﬀect of denying their full humanity. The mental
well-being suﬀers to no end because cruel techniques are used in these so-
called treatments. The treatment is by its very nature cruel. It is the duty

married Transgender couples’ <http://sjd.kerala.gov.in/scheme-info.php?scheme_
id=IDE1MnNWOHVxUiN2eQ==>
252 2019 SCC OnLine Mad 8779
1386 SUPREME COURT REPORTS [2023] 16 S.C.R.

of the state to ensure that these inhumane practices do not continue. The
deleterious eﬀects of discrimination on the mental health of queer persons
was also noticed by this Court in Navtej (supra). Other segments of this
judgment discussed instances of queer persons and couples being driven
to die by suicide as a result of the discrimination and violence meted out
to them. This phenomenon is undoubtedly related to the mental health of
queer persons and the state is equally under an obligation to prevent suicides
because of one’s gender identity or sexual orientation. Section 29 of the
Mental Healthcare Act stipulates that:
“(1) The appropriate Government shall have a duty to plan, design
and implement programmes for the promotion of mental health and
prevention of mental illness in the country.
(2) Without prejudice to the generality of the provisions contained in
sub-section (1), the appropriate Government shall, in particular, plan,
design and implement public health programmes to reduce suicides
and attempted suicides in the country.”
The programmes for the promotion of mental health (envisaged by
Section 29(1)) must include provisions for the mental health of queer
persons. Programmes to reduce suicides and attempted suicides (envisaged
by Section 29(2)) must include provisions which tackle queer identity and
oppression arising from that identity as causes for suicidal tendencies or
feelings. We direct the Union Government as well as the State Governments
or governments of Union Territories (where they exist) to carry out the
mandate of Section 29 in terms of the observations in this paragraph and
to include appropriate modules or provisions which address the unique
concerns of the queer community.
281. In exercise of the rights to dignity, autonomy, privacy and health
an individual (regardless of their gender identity) may choose to enter into a
union with a person (who may be of the same sex as them). Once they enter
into an relationship as life partners, a couple has the right and the freedom to
determine the signiﬁcance of that relationship as well as its consequences.
A denial of this freedom would be a denial of the many facets of Article 21.
b. The right of LGBTQ persons to freedom from coercion from their
families, the agencies of the state, and other persons
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282. The right to enter into a union would be an illusion without the
conditions which permit the unrestricted exercise of that right. Various
parts of this judgment have detailed the violence and discrimination meted
out to members of the LGBTQ community, either because of their gender
identity or because of their sexual orientation. One form of this violence is
that society often attempts to prevent LGBTQ persons from being with their
partner, in a short-term relationship, a long-term relationship, a relationship
where they choose to live together or any other kind of union. This happens in
diﬀerent ways – the couple may be forcibly separated from one another, their
families may ﬁle complaints with the police which lead to the registration of
FIRs and the consequent harassment of one or both of them, or they may be
married oﬀ to third parties without their consent. The families of LGBTQ
persons as well as the police are the primary actors in such violence.
283. The fundamental rights and freedoms codiﬁed by the Constitution
demand that the LGBTQ community be left alone so that its members
can live their lives as they see ﬁt, in accordance with law. This Court has
discussed these rights and freedoms in detail in this judgment. It is the
duty of the state machinery (acting through any authority including the
police) to protect these rights instead of participating in their violation.
Unfortunately, the police often acts in concert with the parents of LGBTQ
persons to prevent the latter from exercising their rights. This Court ﬁnds
this to be unacceptable.
284. In Mansur Rahman v. Superintendent of Police, Coimbatore
District,253 the petitioner was a man who had married a woman who
happened to be transgender. He claimed that his parents and some persons
who belonged to a political outﬁt were harassing and threatening him and
approached the Madras High Court seeking police protection. The Court
allowed the petition and directed the police to ensure that no harm befalls
the petitioner and his wife.
285. In Latha v. Commissioner of Police,254 the Madras High Court
dismissed a writ petition for the issuance of a habeas corpus ﬁled by the
petitioner for the production of her sibling, who happened to be a transgender

253 2018 SCC OnLine Mad 3250
254 2021 SCC OnLine Mad 7495
1388 SUPREME COURT REPORTS [2023] 16 S.C.R.

person. The Court found that the sibling had attained the age of majority
and had voluntarily joined other transgender persons.
286. Sushma v. Commissioner of Police255 concerned a lesbian
couple whose families opposed their relationship. Both their families ﬁled
complaints with the police that they were missing and an FIR was registered.
The police visited the couple and interrogated them. The couple then ﬁled
a writ petition before the Madras High Court seeking a direction to the
police not to harass them as well as for protection from any form of threat
or danger to their safety and security from their families. The Court directed
the parties to undergo counselling (and the judge personally underwent
counselling to understand queerness). Counsel informed the Court that
the FIR would be closed and the parents agreed to let their daughters live
their lives as they wished to. The Court also issued directions to ensure the
protection of LGBTQ couples.
287. We aﬃrm the approach adopted in these cases, which protects
the fundamental rights of LGBTQ persons.
xiii. The right of queer persons to adopt children
b. Challenge to the Adoption Regulations
288. The JJ Act was enacted to consolidate and amend the law catering
to the basic needs of children. Chapter VIII (Sections 56 to 73) deals with
the provisions relating to adoption. Section 2(49) of the JJ Act deﬁnes
“prospective adoptive parents” to mean a person or persons eligible to adopt
a child according to the provisions of Section 57. Section 57 prescribes the
eligibility criteria for prospective adoptive parents:
“57. Eligibility of prospective adoptive parents.—
(1) The prospective adoptive parents shall be physically ﬁt, ﬁnancially
sound, mentally alert and highly motivated to adopt a child for
providing a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for the adoption
shall be required.

255 WP 7248 of 2021, Madras High Court
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(3) A single or divorced person can also adopt, subject to fulﬁlment
of the criteria and in accordance with the provisions of adoption
regulations framed by the Authority.
(4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be speciﬁed in the adoption regulations
framed by the Authority.”
(emphasis supplied)
289. Section 57(1) prescribes general conditions to do with the
physical, mental, and ﬁnancial well-being of the prospective parents as
well as their motivations. Sub-Section (2) states that the consent of both the
parties is required if a couple is adopting a child. Sub-Sections (3) and (4)
of Section 57 state that single and divorced persons are not precluded from
adopting. The only restriction is that a single male cannot adopt a girl child.
290. The Ministry of Women and Child Development notiﬁed the
Regulations framed by the Central Adoption Resource Authority256 in
exercise of the powers conferred under Section 68(c) read with Section
2(3) of the JJ Act. Regulation 5 of the Adoption Regulations prescribes the
eligibility criteria for prospective adoptive parents. The relevant portion of
the provision is extracted below for reference:
“5. Eligibility criteria for prospective adoptive parents.― (1)The
prospective adoptive parents shall be physically, mentally, emotionally
and ﬁnancially capable, they shall not have any life threatening medical
condition and they should not have been convicted in criminal act of
any nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital
status and whether or not they have biological son or daughter, can
adopt a child subject to the following, namely:―
(a) the consent of both the spouses for the adoption shall be required,
in case of a married couple;
(b) a single female can adopt a child of any gender;

256 “CARA”
1390 SUPREME COURT REPORTS [2023] 16 S.C.R.

(c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have
at least two years of stable marital relationship except in the cases of
relative or step-parent adoption.”
(emphasis supplied)
291. Clause (1) of Regulation 5 states that prospective adoptive
parents must be physically, mentally, emotionally, and ﬁnancially stable.
In addition, they must also not have any life-threatening medical condition
or should not have been convicted in a criminal act or should not have
been accused in a case concerning a violation of child rights. The general
conditions in clause (1) are aimed at securing the best interest of the
child. The conditions focus on physical, emotional, and ﬁnancial stability.
Clause (2) stipulates that any person irrespective of their marital status and
irrespective of whether they already have a biological child can adopt. To
this extent, the provision is expansive. However, clause 2(a) states that: (a)
in case of a married couple, the consent of both the spouses is required;
and (b) though a single female can adopt a child of any gender, a single
male shall not be eligible to adopt a girl child. Clause (3) prescribes a
further restriction on the conditions to be met before someone can adopt.
The provision states that a child shall be given in adoption to a couple
only if they have at least two years of a stable marital relationship (except
in cases of relative or step-parent adoption).
292. Though Regulation 5(2)(a) taken alone does not preclude
unmarried couples from being prospective adoptive parents, a combined
reading of Regulations 5(2)(a) and 5(3) elucidates that: (a) only married
couples can be prospective adoptive parents; and (b) such couples must
be in “at least two years of stable marital relationship”. A reading of the
Adoption Regulations indicates that while a person can in their individual
capacity be a prospective adoptive parent, they cannot adopt a child together
with their partner if they are not married.
293. The Adoption Regulations are framed in exercise of the power
conferred under the JJ Act. Section 57(5) of the JJ Act grants the Authority
(which means CARA in terms of Section 2(3) of the JJ Act) the power to
specify any other criteria. Set out below is a table comparing the criteria
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to be prospective adoptive parents prescribed under the JJ Act and the
Adoption Regulations:
JJ Act Adoption Regulations
Th e prospective adoptive In addition to the criteria prescribed
parents must be physically ﬁt, under the JJ Act, the prospective parents
ﬁnancially sound, mentally alert should not have been convicted of a
and highly motivated to provide criminal act and should not have a life-
a good upbringing. threatening medical condition.
Couples can adopt. The consent Only married couples can adopt. A
of both spouses is required in married couple should have been in two
case a couple chooses to adopt. years of stable marital relationship to be
eligible to adopt.
A single male is not eligible to A single male is not eligible to adopt a
adopt a girl child. girl child but a single female is eligible
to adopt a child of any gender.
294. The petitioners submitted that the Adoption Regulations are ultra
vires the provisions of the JJ Act because they bar unmarried couples from
adopting. It was also submitted that the distinction between married and
unmarried persons for the purpose of adoption is violative of Article 14 of
the Constitution.
295. It is settled law that delegated legislation must be consistent with
the parent act and must not exceed the powers granted under the parent Act
(JJ Act).257 The rule making authority must exercise the power for the purpose
for which it is granted. The provisions of the delegated legislation will be
ultra vires if they are repugnant to the parent Act or exceed the authority
which is granted by the parent Act. Section 57(5) delegates to CARA the
power to prescribe any other criteria in addition to the criteria prescribed
by the provision. However, in view of the line of cases on subordinate law-
making, this power cannot be read expansively. CARA’s power to prescribe
additional criteria is limited by the express provisions and legislative policy
of the JJ Act.

257 See J K Industries Limited v. Union of India, (2007) 13 SCC 673; Indian Express
Newspapers (Bombay) P Ltd. V. Union of India, (1985) 1 SCC 641
1392 SUPREME COURT REPORTS [2023] 16 S.C.R.

296. The Adoption Regulations place two restrictions on a couple who
wish to adopt: ﬁrst, the couple must be married, and second, the couple must
have been in a stable marital relationship. We will now determine if the
prescription of these two additional conditions is violative of the provisions
of the JJ Act and the Constitution.
I. Regulation 5(3) of the Adoption Regulations exceeds the scope
of the JJ Act
297. Section 3 of the JJ Act prescribes the general principles to be
followed in the administration of the Act. The provision, inter alia, includes
the principle of best interest, which stipulates that all the decisions regarding
the child shall be based on the best interest of the child which will help the
child develop their full potential.
298. The provisions of the JJ Act promote the best interest of the child
and ensure their development.258 In fact, the eligibility criteria prescribed in
Section 57 are an extension of that principle. The legislative intent behind
prescribing the conditions of physical and mental ﬁtness is to ensure that
the parents are able to prioritise the well-being of the child. Similarly, the
condition requiring the consent of both spouses ensures that the child is able
to receive the attention and care of both partners. The intent is not to give a
child for adoption to a couple where one of them is unwilling to take up the
responsibility of being a parent. Similarly, the criterion prohibiting a single
male from adopting a girl child is in the State’s interest of preventing child
sexual abuse. It can be garnered that the State has prescribed the criteria in
Section 57 keeping in mind the welfare of the child.
299. Section 57(2) does not stipulate that only married couples can
adopt. It states that “in case of a couple” the consent of both the spouses
must be secured. This is a clear indicator that adoption by a married couple
is not a statutory requirement. Section 57(2) provides that the consent of
both the parties must be received if the prospective adoptive parents are in a
married relationship. The usage of the phrase spouse in Section 57(2) does
not mean that it excludes unmarried couples from adopting.

258 See Gaurav Jain v. Union of India, (1997) 8 SCC 114; Karan v. State of M.P., (2023)
5 SCC 504; Barun Chandra Thakur v. Bholu, 2022 SCC OnLine SC 870; Shilpa
Mittal v. State (NCT of Delhi), (2020) 2 SCC 787
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300. However, Regulation 5(3) of the Adoption Regulations bars
unmarried partners from being prospective adoptive parents. These
Regulations only permit persons to adopt in an individual capacity and not
jointly as an unmarried couple. Regulation 5(2) states that every person
irrespective of whether they are married or unmarried will be able to be
prospective adoptive parents. The subsequent criteria in clause (a) (that is,
the requirement for the consent of both spouses if they are married) does
not exclude an unmarried couple from adopting. It only states that if the
couple is married, then the consent of both the parties shall be secured.
However, Regulation 5(3) in express terms excludes unmarried couples
from adopting by prescribing the condition that the couple must have been
in two years of a ‘stable marital relationship.’ As observed in the previous
paragraph, the JJ Act does not preclude unmarried couples from adopting.
Though Section 57 of the JJ Act grants CARA the power to prescribe
additional criteria, the criteria must not exceed the scope of the legislative
policy. Neither the general principles guiding the JJ Act nor Section 57 in
particular preclude unmarried couples from adopting a child. In fact, all
the other criteria ensure the child’s best interests. The Union of India has
not proved that precluding unmarried couples from adopting a child (even
though the same people are eligible to adopt in their individual capacity)
is in the child’s best interests. Thus, CARA has exceeded its authority by
prescribing an additional condition by way of Regulation 5(3), which is
contrary to tenor of the JJ Act and Section 57 in particular.
301. Further, the usage of the phrase ‘stable’ in Regulation 5(3) is
vague. It is unclear if the provision creates a legal ﬁction that all married
relationships which have lasted two years automatically qualify as a stable
relationship or if there are speciﬁc characteristics in addition to those
prescribed in Regulation 5(1) (that is, physical, mental, and emotional
wellbeing) which would aid in the characterization of a married relationship
as a stable one. Hence, Regulation 5(3) exceeds the scope of the JJ Act.
II. Regulation 5(3) of the Adoption Regulations violates Article 14
of the Constitution
302. Regulation 5(3) of the Adoption Regulations has classiﬁed couples
into married and unmarried couples for the purpose of adoption. The intent
of CARA to identify a stable household for adoption is discernible from
Regulation 5(3). However, CARA has proceeded under the assumption that
1394 SUPREME COURT REPORTS [2023] 16 S.C.R.

only married couples would be able to provide a stable household for the
child. Such an assumption is not backed by data. Although married couples
may provide a stable environment, it is not true that all couples who are married
will automatically be able to provide a stable home. Similarly, unmarried
relationships cannot be characterized as ﬂeeting relationships which are
unstable by their very nature. Marriage is not necessarily the bedrock on which
families and households are built. While this is the traditional understanding
of a family, we have already elucidated above that this social understanding
of a family unit cannot be used to deny the right of other couples who are in
domestic partnerships or live-in relationships to found a family.
303. It is now a settled position of law that classiﬁcation per se is not
discriminatory and violative of Article 14. Article 14 only forbids class
legislation and not reasonable classiﬁcation. A classiﬁcation is reasonable,
when the following test is satisﬁed:259
a. The classiﬁcation must be based on an intelligible diﬀerentia which
distinguishes the persons or things that are grouped, from others
left out of the group; and
b. The diﬀerentia must have a rational nexus to the object sought to
be achieved by the statute.
304. The Adoption Regulations use marriage as a yardstick to
classify couples. There is an intelligible diﬀerentia in using marriage as an
indicator to classify couples in the sense that married couples can easily be
distinguished from unmarried couples. However, the diﬀerentia does not
have a rational nexus with the object sought to be achieved by the CARA
Regulations which is to ensure that the best interest of the child is protected.
Placing a child in a stable family is undoubtedly in pursuance of a child’s
interest. However, the respondents have not placed any data on record to
support their claim that only married relationships can provide stability. It is
true that separating from a married partner is a cumbersome process when
compared to separating from a partner with whom a person is in a live-in
relationship. This is because separation from a married partner is regulated
by the law while live-in relationships are unregulated by law (other than
for the limited purpose of domestic violence). For instance, the law deters a

259 See Anwar Ali Sarkar v. State of West Bengal, 1952 SCR 284
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person from securing a divorce immediately by prescribing conditions such
as a six-month waiting period after a petition for divorce by mutual consent
is ﬁled.260 Merely because a marriage is regulated by the law, it cannot be
assumed that marriage alone or that every marriage accords stability to
a relationship. Similarly, it can also not be inferred that couples who are
not in a married relationships are not ‘serious’ about the relationship. The
stability of the household depends on various factors such as the eﬀort
and involvement of the partners in establishing and running a household,
creating a safe space at home, creating a healthy work-life balance, and a
household where mental, physical, and emotional violence is not inﬂicted
on one another. There is no single form of a stable household. There is no
material on record to prove the claim that only a married heterosexual couple
would be able to provide stability to the child. In fact, this Court has already
recognized the pluralistic values of our Constitution which guarantee a right
to diﬀerent forms of association.
305. The Union of India is required to submit cogent material to support
its claim that only married partners are able to provide a stable household.
However, it has not done so. The Union of India has submitted four studies
titled “Child Attention-Deﬁcit Hyperactivity Disorder (ADHD) in same
sex parents families in the United States: Prevalence and Comorbidities,”261
“High School graduation rates amongst children of same sex households,”262
“Children in planned lesbian families: stigmatization, psychological
adjustment and protective factors,”263 and “Children in three contexts:
Family, Education and Social Development.”264 The studies submitted by

260 Section 13(B) (2) of the Hindu Marriage Act 1955; A Constitution bench of this
Court in Shilpa Sailesh v. Varun Sreenivasan260 held that this Court in exercise of
its powers under Article 142 can dissolve a marriage on its irretrievable breakdown
dispensing of the six month cooling period prescribed by law in certain circumstances.
261 D Paul Sullins, Child Attention-Deﬁcit Hyperactivity Disorder (ADHD) in same-sex
parent families in the United States: Prevalence and Comorbidities, British Journal
of Medicine & Medical Research 6(10):987-998, 2015
262 Douglas W.Allen, High School graduation rates among children of same sex
households, Rev Econ Household (2013) 11:635-658
263 Henry M.W Bos & Frank Van Balen, Children in planned lesbian families:
Stigmatisation, psychological adjustment and protective factors, Culture, Health and
Sexuality: An International Journal for Research, Intervention and Care, 10:3, 221-
236.
264 Solirios Sarantakos, Children in three contexts: Family, education, and social
development, Children Australia Volume 21, No. 3, 1996
1396 SUPREME COURT REPORTS [2023] 16 S.C.R.

Ms. Aishwarya Bhati, learned ASG conclude that non-heterosexual couples
cannot eﬀectively take up the role of parents. The studies neither indicate that
only married (and not unmarried) couples can be in a stable relationship nor
that only married couples have the ability to eﬀectively parent children. Thus,
the Union of India has not submitted any cogent material to substantiate the
claim that unmarried couples cannot be in a stable relationship. The Union
of India has not been able to demonstrate that a single parent who adopts
a child will provide a more stable environment for a child who is adopted
than an unmarried couple. For all these reasons, Regulations 5(2)(a) and 5(3)
of the Adoption Regulations are violative of Article 14 of the Constitution.
306. Further, in terms of Section 58(2) of the JJ Act, the Specialised
Adoption Agency is required to prepare a home study report of the
prospective adoptive parents. It is only when the prospective adoptive parents
are found eligible after the home study report that a child is referred to them
for adoption. Section 58(5) provides that the progress and wellbeing of the
child shall be ascertained after the adoption. The procedure for adoption
provides for the assessment of a couple and their capacity and ability to care
for a child. Any areas of concern relating to a couple’s capability as a parent
would be discernible in the home study. This is true of both heterosexual
couples as well as queer couples. The home study must consider the couple’s
capability without reference to their sexual orientation.
III. Regulation 5(3) of the Adoption Regulations violates Article
15 of the Constitution
307. Ms. Aishwarya Bhati referred to the judgment of this Court in
Shabnam Hashmi v. Union of India265 to argue that the fundamental right
to adopt is not recognised under the Constitution and thus, the exclusion of
queer persons from the scheme for adoption is not violative of Part III of
the Constitution. In Shabnam Hashmi (supra), a petition was ﬁled under
Article 32 of the Constitution seeking a declaration that the Constitution
guarantees the right to adopt, and in the alternative, requesting the court to
law down guidelines enabling adoption by persons irrespective of religion,
caste, and creed. This Court disposed of the petition by observing that the
adjudication of the question of whether adoption must be elevated to the
status of a fundamental right must await the “dissipation of conﬂicting

265 (2014) 4 SCC 1
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thought processes”:
“16. […] While it is correct that the dimensions and perspectives of
the meaning and content of the fundamental rights are in a process of
constant evolution as is bound to happen in a vibrant democracy where
the mind is always free, elevation of the right to adopt or to be adopted
to the status of a fundamental right, in our considered view, will have
to await a dissipation of the conﬂicting thought processes in this sphere
of practices and belief prevailing in the country. The legislature which
is better equipped to comprehend the mental preparedness of the entire
citizenry to think unitedly on the issue has expressed its view, for the
present, by the enactment of the JJ Act 2000 and the same must receive
due respect. … All these impel us to take the view that the present
is not an appropriate time and stage where the right to adopt and the
right to be adopted can be raised to the status of a fundamental right
and/or to understand such a right to be encompassed by Article 21 of
the Constitution.”
308. The observations of this Court in Shabnam Hashmi (supra) that
it is not the appropriate time to recognise a right to adopt and to be adopted
does not aﬀect the case of the petitioners. The petitioners’ challenge to
Regulation 5(3) of Adoption Regulations is mounted on the ground that
is discriminates against the queer community. The challenge is not on the
ground that it violates the right to adopt nor is it the petitioners case that
they have a fundamental right to adopt. The crux of the petitioners case is
that Regulation 5(3) discriminates against the queer community because it
disproportionately aﬀects them.
309. Regulation 5(3), though facially neutral, indirectly discriminates
against atypical unions (such the relationship between non-heterosexual
partners) which have not been recognised by the State. Queer marriages
have not been recognized by the state and queer persons in atypical unions
cannot yet enter into a marriage which is recognized by the state. Though
the additional criteria prescribed by the Adoption Regulations would
also aﬀect a heterosexual person’s eligibility to adopt a child, it would
disproportionately aﬀect non-heterosexual couples.266 This is because
the State has not conferred legal recognition to the unions between queer

266 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
1398 SUPREME COURT REPORTS [2023] 16 S.C.R.

persons, in the form of marriage. Consequently, an unmarried heterosexual
couple who wishes to adopt a child has the option of marrying to meet the
eligibility criteria for adoption. However, this option is not available to queer
couples. When Regulation 5(3) is understood in light of this position, a queer
person who is in a relationship can only adopt in an individual capacity.
This exclusion has the eﬀect of reinforcing the disadvantage already faced
by the queer community.
310. The National Commission for Protection of Child Rights
(‘NCPCR’) has submitted that excluding queer persons from adopting
children is backed by cogent reasons. As stated above, Ms. Aishwarya Bhati
submitted four studies to support the claim that permitting non-heterosexual
couples to adopt is not in the best interest of the child. The paper titled
“Child Attention-Deﬁcit Hyperactivity Disorder (ADHD) in same-sex parent
families in the United States: Prevalence and Comorbidities,”267 examines a
sample of 1,95,240 children including 512 children with same-sex parents.
The paper concluded that children with same-sex parents in the United States
were twice as likely to suﬀer from ADHD than children with opposite-sex
parents. The paper titled “High School graduation rates among children
of same-sex households”268 uses the 2006 Canada census to study high
school graduation probabilities of children of parents belonging to the queer
community. The paper concluded that children living with parents belonging
to the queer community perform more poorly in school when compared to
children living with married heterosexual parents. The paper titled “Children
in planned lesbian families: stigmatisation, psychological adjustment and
protective factors”269 conducted a study to assess the extent to which children
between eight and twelve years in planned lesbian families in the Netherlands
experience stigmatization. For the purpose of this assessment, data was
collected from questionnaires ﬁlled out by mothers and by children. It was

267 D Paul Sullins, Child Attention-Deﬁcit Hyperactivity Disorder (ADHD) in same-sex
parent families in the United States: Prevalence and Comorbidities, British Journal
of Medicine & Medical Research 6(10):987-998, 2015
268 Douglas W.Allen, High School graduation rates among children of same sex
households, Rev Econ Household (2013) 11:635-658
269 Henry M.W Bos & Frank Van Balen, Children in planned lesbian families:
Stigmatisation, psychological adjustment and protective factors, Culture, Health and
Sexuality: An International Journal for Research, Intervention and Care, 10:3, 221-
236.
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concluded that higher levels of stigmatization were associated with such
children. Boys were found to be more hyperactive and girls were found to
suﬀer from a lower self-esteem. The paper titled “Children in three contexts:
Family, education, and social development” 270 collected a sample of 174
primary school children living with married heterosexual couples, cohabiting
heterosexual couples, and homosexual couples to explore the relationship
between family environment and the behaviour of primary school children.
The study concluded that the children of married couples are more likely to
do well at school, in academic and social terms, than children of cohabiting
heterosexual and homosexual couples. However, the author cautions that
there may be additional factors such as biases which the teachers may have
held while assessing the children, based on their cultural beliefs.
311. On the other hand, Dr. Menaka Guruswamy appearing for the
intervenor, Delhi Commission for Protection of Child Rights argued that
there is no evidence or empirical data to show that non-heterosexual couples
are unﬁt to be parents or that the psychosocial development of children
brought up by same-sex couples will be compromised. The learned counsel
relied on the paper titled “Lesbian and Gay Parenting” by the American
Psychological Association271 in which it was concluded that the home
environment provided by non-heterosexual couples is not diﬀerent from
that provided by heterosexual parents. In another study titled “Same-sex
parenting in Brazil and Portugal: An integrative review”,272 the authors found
that the adoption of children by one of the individuals in a non-heterosexual
partnership because of the delay in the recognition of same-sex marriage
became a weakness to such families on the issues of health, education, and
other responsibilities. In another paper titled, “Academic achievement of
children in same and diﬀerent sex parented families: A population-level
analysis of linked administrative data from the Netherlands”,273 it was

270 Solirios Sarantakos, Children in three contexts: Family, education, and social
development, Children Australia Volume 21, No. 3, 1996
271 American Psychological Association, ‘Lesbian and Gay Parenting’
272 Biasutti, CM; Nascimento CRR, Gato J, Bortolozzo ML, Same-sex parenting in
Brazil and Portugal: An integrative review. Research, Society and Development, [S.
l.], v. 11, n. 16,
273 Kabátek J, Perales F. Academic Achievement of Children in Same- and Diﬀerent-
Sex-Parented Families: A Population-Level Analysis of Linked Administrative Data
From the Netherlands. Demography. 2021 Apr 1;58(2):393-418
1400 SUPREME COURT REPORTS [2023] 16 S.C.R.

concluded that the children raised by same-sex couples performed at least
as well as children of heterosexual parents in socio-political environments
characterised by high levels of legislative or public support, and that the
children living in same-sex parented families experience no educational
disadvantage relative to children living in heterosexual parented families.
The learned counsel also relied on a study which was conducted based on the
data derived from Netherlands where same-sex marriages were formalised
in 2011.274 The study found that the academic results of children indicated
that children raised by non-heterosexual parents outperformed children
raised by heterosexual parents by 0.139 standard deviations, and that they
are 4.8 percentage points more likely to graduate. The studies which have
been submitted by the counsel on either sides support their respective
arguments. The studies submitted by Ms Bhati support the argument that
even if Regulation 5(3) discriminates against the queer community, it is
justiﬁed because the interest of the child would suﬀer if they are parented
by queer partners. On the other hand, the studies submitted by Dr. Menaka
Guruswamy support the argument that the interest of the child parented by
persons belonging to the queer community does not suﬀer, and if it does it is
not because persons with queer identity are ‘bad’ parents but because the State
by not recognising queer relationships treats them as second-class citizens.
312. The burden which is required to be discharged by the State for
an Article 14 violation and an Article 15 violation vary. While Article 14
prohibits unreasonable classiﬁcation, Article 15 prohibits discrimination
based on identity. The interpretation of Article 15 has evolved over the
years to incorporate a more substantial eﬀects-based approach towards the
anti-discrimination principle.275 The test is whether the law discriminates
against persons in eﬀect, based on the identities covered in Article 15. While
the Court is undertaking an exercise to determine if Article 14 is violated,
the State is required to submit cogent evidence to support its claim that the
classiﬁcation holds a nexus with the object sought to be achieved. On the
other hand, there is no justiﬁcation for discrimination based on identities
which are protected under Article 15. State interests (even if established

274 Deni Mazrekaj, Kristof De Witte, Soﬁe Cabus, School outcomes of children raised by
same-sex parents: Evidence from administrative Panel Data, American Sociological
Review Volume 85 Issue 5
275 See Navtej (supra)
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which in this case it has not been) cannot be used to justify discrimination
once the Court holds that the provision in eﬀect discriminates based on
identity. Of course, while the Court is assessing if the provision under
challenge discriminates in eﬀect based on identity, it must also evaluate
whether the provision in question is a protective provision meant to achieve
the guarantee of substantive equality.
313. For example, it cannot be argued that the Transgender Persons Act
is violative of Article 15 because it provides special provisions to safeguard
the interest of the transgender community in exclusion of cis-gender persons.
A classiﬁcation based on the identities protected by Article 15 does not
automatically lead to discrimination. This Court in State of Kerala v.
NM Thomas276 held that protective provisions (such as for reservation)
were not an exception to the anti-discrimination law but are in furtherance
of the principle of equality (of which anti-discrimination is a facet). The
Court examines if the law is discriminatory not based on whether there is
a classiﬁcation based on the identity but whether there is discrimination
based on the identity. While doing so it determines if it is a protective
provision. However, once it is established that the law discriminates based
on protected identities, it cannot be justiﬁed based on state interest. Thus,
once it is proved that the law discriminates based on sexual orientation as
in this case (because it disproportionately aﬀects queer persons), no amount
of evidence or material submitted by the State that such discrimination is
based on state’s interest can be used as a justiﬁcation.
314. We are of the opinion that if the children of persons from the
queer community suﬀer it is because of the lack of recognition (at a legal
and social plane) to same-sex unions. In fact, one of the studies submitted
by Ms. Aishwarya Bhati highlights this aspect.277 The stigmatization (if any)
faced by the children parented by persons of the queer community is because
of the inherent biases that the society holds against the queer community,
and in this context, biases about their ﬁtness to be parents. Thus, it is in the
interest of children that the State endeavours to take steps to sensitise the
society about queer relationships.

276 (1976) SCC 2 310
277 Solirios Sarantakos, Children in three contexts: Family, education, and social
development, Children Australia Volume 21, No. 3, 1996
1402 SUPREME COURT REPORTS [2023] 16 S.C.R.

315. In fact, the Indian Psychiatric Society which consists of 7000
mental health professionals in India released a statement stating that children
brought up by non-heterosexual parents may face stigmatization and that it
is important that the civic society is adequately sensitized:
“The Indian Psychiatric Society is very cognizant that a child adopted
into a same gendered family may face challenges, stigma and/or
discrimination along the way. It is imperative that, once legalized, such
parents of the LGBTQA spectrum bring up the children in a gender
neutral, unbiased environment. It is also of utmost importance, that
the family, community, school and society in general are sensitized
to protect and promote the development of such a child, and prevent
stigma and discrimination at any cost.”
316. The law cannot make an assumption about good and bad parenting
based on the sexuality of individuals. Such an assumption perpetuates a
stereotype based on sexuality (that only heterosexuals are good parents
and all other parents are bad parents) which is prohibited by Article 15 of
the Constitution. This assumption is not diﬀerent from the assumption that
individuals of a certain class or caste or religion are ‘better’ parents. In view
of the above observations, the Adoption Regulation is violative of Article
15 for discriminating against the queer community.
317. In view of the observations above, Regulation 5(3) is ultra vires
the parent Act for exceeding the scope of delegation and for violating Articles
14 and 15 of the Constitution. It is settled that courts have the power to read
down a provision to save it from being declared ultra vires.278 Regulation
5(3) is read down to exclude the word “marital”. It is clariﬁed that the
reference to a ‘couple’ in Regulation 5 includes both married and unmarried
couples including queer couples. In bringing the regulations in conformity
with this judgment, CARA is at liberty to ensure that the conditions which
it prescribes for a valid adoption subserve the best interest and welfare of
the child. The welfare of the child is of paramount importance. Hence, the
authorities would be at liberty to ensure that the familial circumstances
provide a safe, stable, and conducive environment to protect the material
well-being and emotional sustenance of the child. Moreover, CARA may

278 Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228; State Bank of Travancore
v. Mohammed Khan (1981) 4 SCC 82; Indra Das v. State of Assam, (2011) 3 SCC 380
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insist on conditions which would ensure that the interest of the child would
be protected even if the relationship of the adoptive parents were to come
to an end in the future. Those indicators must not discriminate against any
couple based on sexual orientation. The criteria prescribed must be in tune
with constitutional values. 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 or queer couples who seek
to jointly adopt a child.
318. The forms in Schedules II (child study report), III (medical
examination report and classiﬁcation of special needs of a child), VI (online
registration form) and VII (home study report) use the phrases “male applicant”
and “female applicant”. We have already concluded above that both married
and unmarried couples can adopt under Regulation 5 of the Adoption
Regulations. After the judgments of this Court Navtej (supra) and NALSA
(supra) recognising non-binary identity and their freedom to choose a partner
irrespective of the sexual identity, reference to a ‘couple’ cannot be restricted to
heterosexual relationships. It will include all forms of queer relationships. The
phrases “male applicant” and “female applicant (in case of applicant couples)”
in Schedules II, III, VI and VII of the Adoption Regulations limit reference to
only heterosexual couples and have the eﬀect of precluding persons in queer
relationships from adopting, violating the anti-discrimination principle in
Article 15(1). Thus, the phrases “male applicant” and “female applicant (in
case of applicant couples)” in Schedules II, III, VI and VII of the Adoption
Regulations are substituted with the phrases “prospective adoptive parent 1”
and “prospective adoptive parent 2 (in case of applicant couples).”
b. Challenge to the CARA Circular
319. In 2022, CARA issued an Oﬃce Memorandum stipulating that a
single prospective adoptive parent in a live-in relationship will be ineligible
to adopt a child. The Oﬃce Memorandum further provides that this decision
is taken in line with Regulation 5(3) of the Adoption Regulations which
stipulates that a child can only be placed with a stable family and that a single
applicant in a live-in relationship cannot be considered to be a part of a stable
family. The relevant portion of the Oﬃce Memorandum is extracted below:
“It has been noticed from Home study Reports (HSRs) that some
single PAPs registered with CARA for the adoption process are in
relationship with their live-in partner.
1404 SUPREME COURT REPORTS [2023] 16 S.C.R.

2. The cases of single PAPs engaged in live-in relationship have been
discussed in the Steering Committee of Central Adoption Resource
Authority (CARA) during its 31st Meeting held on 18th April, 2022.
It has been decided to go with the earlier decision of 14th Steering
Committee Meeting held on 10th May, 2018 that the cases of single
PAP in a live-in relationship with a partner will not be considered
eligible to adopt a child and their registration from concerned
agencies/authorities will not be considered for approval.
3. The decision has been taken in line with Regulation 5(3) of the
Adoption regulations 2017. The authority would like the children to
be placed only with the stable family and single applicant in a live-in
relationship cannot be considered as stable family.”
(emphasis supplied)
320. CARA in its 31st meeting held on 18 April 2022 in terms of the
decision taken in the Steering Committee Meeting held on 10 May 2018
resolved that an application received by a prospective adoptive parent who
is in a live-in relationship may not be considered on the basis of Regulation
5(3) of the Adoption Regulations. The resolution is extracted below:
“14. Reference is drawn to Steering Committee Meeting, held on 10th
May 2019 wherein the Steering Committee had not approved adoption
to prospective adoptive parents staying in Live-in relationship.
However, NOC section has received three cases of children reserved
from Special Need portal and on examination of the HSR it has been
observed that the parents have been in live-in relationship.
15. In this regard the NOC committee had not approved inter-country
cases of the children on the basis of Reg. 5(3) which states that no
child shall be given in adoption to a couple unless they have atleast
two years of stable marital relationship. Since the matter involves
cases of special needs children, the issue may be kindly be discussed
in the Steering Committee.
Decision: It was decided to go with the earlier decision of the Steering
committee and the same rule should be applicable as that of the
domestic PAPs. Any application received from live in PAPs may not
be considered on the basis of Reg. 5(3) of the Adoption Regulations.”
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321. The CARA Circular prescribes a condition in addition to the
conditions prescribed in the Adoption Regulations. While the Adoption
Regulations exclude unmarried couples from jointly adopting a child, the
CARA Circular restricts the ability of a person who is in a live-in relationship
to adopt in their individual capacity. The CARA Circular stipulates that the
decision is in pursuance of Regulation 5(3) of the Adoption Regulations
which requires couples to be in a ‘stable’ relationship.
322. Regulation 5(1) of the Adoption Regulations prescribes a general
criteria (in the form of a guiding principle) for prospective adoptive parents
which is that they must be physically, mentally, and emotionally ﬁt, they must
not be convicted of a criminal act, and they must not have a life-threatening
disease. These criteria are equally applicable to couples and persons who
wish to adopt in their individual capacity. All the other subsequent provisions
in Regulation 5 are speciﬁc to couples (that is, the requirement of a stable
relationship and the consent of both parties) and individuals (that is, that a
male cannot adopt a girl child). Hence, the additional criterion prescribed
by the CARA circular for a person to adopt in an individual capacity
must be traceable to the principles in Regulations 5(1) and 5(2)(c). The
condition imposed by CARA circular is neither traceable to the principles
in Regulations 5(1) and 5(2)(c) nor is it traceable to any of the provisions
of the JJ Act. The CARA Circular has exceeded the scope of the Adoption
Guidelines and the JJ Act.
323. According to the Adoption Regulations, unmarried couples
cannot jointly adopt a child. Though the additional criteria prescribed by
the CARA Circular would also aﬀect a heterosexual person’s eligibility to
adopt a child, it would disproportionately aﬀect279 non-heterosexual couples
since the State has not conferred legal recognition in the form of marriage
to the union between non-heterosexual persons. When the CARA Circular
is read in light of this legal position, a person of the queer community would
be forced to choose between their wish to be an adoptive parent and their
desire to enter into a partnership with a person they feel love and aﬃnity
with. This exclusion has the eﬀect of reinforcing the disadvantage already
faced by the queer community. For these reasons and the reasons recorded

* Ed. Note: PART E
279 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
1406 SUPREME COURT REPORTS [2023] 16 S.C.R.

in Section D (xiii)(a)(III), the CARA Circular is violative of Article 15 of
the Constitution.
E*. Response to the opinion of Justice Ravindra Bhat
324. In the opinion authored by him, my learned brother, Justice
Ravindra Bhat states that unenumerated rights are recognised by Courts
in response to State action “that threaten the freedom or right directly or
indirectly.” With due respect, such a narrow understanding of fundamental
rights turns back the clock on the rich jurisprudence that the Indian courts
have developed on Part III of the Constitution. This Court has held in
numerous cases held that the rights of persons are infringed not merely by
overt actions but also by inaction on the part of the State. Some of these
precedents are referred to below.
325. In NALSA (supra), this Court held that the State by rendering
the transgender community invisible and failing to recognize their gender
identity deprived them of social and cultural rights. This Court recognised
the duty of the State to enable the exercise of rights by the transgender
community and issued a slew of directions to enforce this duty. Justice AK
Sikri in his opinion issued the following declarations and directions:
“129. We, therefore, declare:
1. Hijras, Eunuchs, apart from binary gender, be treated as “third
gender” for the purpose of safeguarding their rights under Part
III of our Constitution and the laws made by the Parliament and
the State Legislature.
2. Transgender persons’ right to decide their selﬁdentiﬁed gender is
also upheld and the Centre and State Governments are directed
to grant legal recognition of their gender identity such as male,
female or as third gender.
3. We direct the Centre and the State Governments to take steps
to treat them as socially and educationally backward classes of
citizens and extend all kinds of reservation in cases of admission
in educational institutions and for public appointments.
4. Centre and State Governments are directed to operate separate
HIV Sero-surveillance Centres since Hijras/ Transgenders face
several sexual health issues.
* Ed. Note: PART E
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5. Centre and State Governments should seriously address the
problems being faced by Hijras/Transgenders such as fear, shame,
gender dysphoria, social pressure, depression, suicidal tendencies,
social stigma, etc. and any insistence for SRS for declaring one’s
gender is immoral and illegal.
6. Centre and State Governments should take proper measures to
provide medical care to TGs in the hospitals and also provide
them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for framing
various social welfare schemes for their betterment.
8. Centre and State Governments should take steps to create public
awareness so that TGs will feel that they are also part and parcel
of the social life and be not treated as untouchables.
9. Centre and the State Governments should also take measures
to regain their respect and place in the society which once they
enjoyed in our cultural and social life.”
326. In Union of India v. Association of Democratic Reforms280,
proceedings under Article 136 were initiated against the judgment of the
High Court of Delhi which recognised the rights of citizens to receive
information regarding criminal activities of a candidate to the legislative
assembly. The High Court directed the Election Commission to inter alia
secure information on whether the candidate is accused of any oﬀence and
the assets possessed by a candidate. A three-Judge Bench of this Court
dismissed the appeal and held that it is imperative that the electorate
possesses suﬃcient information to enable them to exercise their right to
vote. The observations are extracted below:
“34. From the afore quoted paragraph, it can be deduced that the
members of a democratic society should be suﬃciently informed so
that they may inﬂuence intelligently the decisions which may aﬀect
themselves and this would include their decision of casting votes in
favour of a particular candidate. If there is a disclosure by a candidate
as sought for then it would strengthen the voters in taking appropriate
decision of casting their votes.

280 (2002) 5 SCC 294
1408 SUPREME COURT REPORTS [2023] 16 S.C.R.

45. Finally, in our view this Court would have ample power to direct
the Commission to ﬁll the void, in the absence of suitable legislation
covering the ﬁeld and the voters are required to be well informed and
educated about contesting candidates so that they can elect a proper
candidate by their own assessment. It is the duty of the executive to ﬁll
the vacuum by executive orders because its ﬁeld is coterminous with
that of the legislature, and where there is inaction by the executive,
for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations to provide a solution till such time the
legislature acts to perform its role by enacting proper legislation to
cover the ﬁeld. The adverse impact of lack of probity in public life
leading to a high degree of corruption is manifold. Therefore, if the
candidate is directed to declare his/her spouse’s and dependants’
assets —immovable, movable and valuable articles — it would have
its own eﬀect.”
327. While the precedents on the subject are not multiplied in the text
of the judgment, some of the judgments on this point are footnoted.281 In
view of the discussion above, the observation of Justice Bhat that an overt
action of the State is necessary for the court to direct the State to create
enabling conditions has no jurisprudential basis. Neither the provisions of the
Constitution nor the earlier decisions of this Court create such a distinction.
In fact, as I have discussed in detail, Article 32 of the Constitution states
that the Supreme Court shall have the power to issue directions for the
enforcement of rights conferred by Part III without making any distinction
between action and inaction by the State.
328. I also disagree with the observations of Bhat J that in the absence
of a legal regime, the power of this Court to issue directions to enable the
facilitation of rights is limited. In Sheela Barse v. Union of India282, the

281 In the context of the right to speedy trial, see SC Advocates-on-Record Association v.
Union of India, (1993) 4 SCC 441 (paragraph 505-507) and State of Punjab v. Ajaib
Singh, (1995) 2 SCC 486 (paragraph 6); in the context of the right to environment,
see MC Mehta v. Union of India, (2004) 6 SCC 588 (paragraphs 40 and 42); in the
context of the right to freedom from noise pollution, see Noise Pollution (I), in re
(2005) 5 SCC 727; in the context of the right to legal aid, see State of Maharashtra
v. Manubhai Pragji Vashi, (1995) 5 SCC 730
282 (1993) 4 SCC 204
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petitioner, a social activist brought to the attention of this court that the
State of West Bengal jailed persons with mental disabilities who are not
suspected, accused, charged of, or convicted for, committing any oﬀence
but only for the reason that they are mentally ill. The decision to jail them
was made based on an instant assessment of their mental health. This Court
held that the admission of such mentally ill persons to jails was illegal and
unconstitutional. This Court also directed that hospitals shall be immediately
upgraded, psychiatric services shall be set up in all teaching and district
hospitals, including ﬁlling posts for psychiatrists, and integrating mental
health care with the primary health care system. In PUCL v. Union of
India283, the petitioner submitted that the right to livelihood implies that the
State has a duty to provide food to people. In a series of orders, this Court
identiﬁed government schemes which constituted legal entitlements of the
right to food and outlined the manner of implementing these schemes.
329. My learned brother relies on the example of Article 19(1)(d) to
buttress his point. He states that in the absence of a law which casts a duty on
the State to provide transportation through roads, a citizen cannot approach
the court and seek the construction of a road to enforce the right to move
freely. The opinion of my learned brother fails to have noted the judgment of
a three-Judge Bench of this Court in State of Himachal Pradesh v. Umed
Ram Sharma284. In this case, a letter petition was written to the High Court
claiming that the construction of a road which would beneﬁt the residents
of the village and in particular, the members of the Dalit community was
stopped by the State. The High Court directed the Superintending Engineer
of the Public Works Department to complete the construction of the road.
This Court dismissed the appeal against the judgment of the High Court
observing that the Constitution places a duty on the State to provide roads for
residents of hilly areas because access to roads is encompassed in their right
to secure a quality life. This Court recognised that the right under Article 21
of the Constitution is violated if the State does not build roads for eﬀective
communication and transportation. Thus, even in the absence of a law which
requires the State to build roads, such a duty was imposed on the State on
an interpretation of Part III of the Constitution. Moreover, in the precent

283 WP (Civil) No. 196/2001
284 (1986) 2 SCC 68
1410 SUPREME COURT REPORTS [2023] 16 S.C.R.

case, the petitioners are demanding equal access to something which does
exist (i.e., the entitlements which ﬂow from the right to form an abiding
cohabitational union). In fact, my learned brother himself recognizes this
when he holds that the actions of the state have the eﬀect of discriminating
against queer couples. The example under Article 19(1)(a) is unconvincing
for similar reasons.
330. Bhat, J. holds that: (i) the legal dimension of marriage in USA is
diﬀerent from the legal dimension of marriage in India; (ii) the legality of
a marriage in USA is solely dependent on a validly obtained license; (iii) in
India, the legal status of a marriage stems from personal law and customs;
and (iv) the terms of marriage are set, to a large extent, independently of
the state. While there is no doubt that marriage predates the state and the
existence of what we now consider ‘law’, I am unable to agree with the
conclusion of my learned brother that the status of a marriage in India
stems only from personal law and customs and that the terms of marriage
are largely set independently of the state, for two reasons: First, the legal
status of a married couple stems from statute. Once the state began regulating
marriage, the validity (and consequently, the ‘status’) of marriage is traceable
to law. While law may provide that a marriage is valid if it was performed in
accordance with custom, it is beyond cavil that the only reason that a custom
is relevant (for the purposes of law) is because of law itself. Therefore, it is
law (through statutes) that accords signiﬁcance to personal law and customs
and it is statutes that may (and often do) deviate from personal law and
customs. Second, the number of legislations which govern marriage as well
as the detailed framework which they set out makes it immediately evident
that the terms of marriage are not set independently of the state, but by the
state itself. From divorce to custody to maintenance to domestic violence
and oﬀences, almost every aspect of marriage is regulated by the state. I
have discussed the manner in which marriage has evolved (through state
regulation) in detail in Section D(iii)(b) of my judgment. Thus, marriage
as an institution cannot anymore be viewed as solely traceable to customs
and traditions after the State’s interference to regulate the institution. The
State’s reformation of the institution has slowly but evidently changed the
nature of the institution itself. Under the Constitution, the state is empowered
to reform social institutions including marriage in line with constitutional
values.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1411
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

331. Contrary to what is stated in the judgment of Bhat, J., the
directions in my judgment do not require the state to create social or legal
status, or a social institution. The directions are with a view to recognizing
the choice that a person makes for themselves when they choose another to
be their partner for life. The directions seek to make that choice a meaningful
one. Nowhere do they create an institution of any kind. Rather, they give
eﬀect to the fundamental rights in Part III of the Constitution. This is the
mandate of this Court under Article 32 – “The Supreme Court shall have
power to issue directions or orders or writs … for the enforcement of any
of the rights conferred by this Part.” No response is forthcoming to my
detailed exposition of the scope of the powers of this Court under Article
32 in Section D(i) of my judgment. In fact, Bhat, J. himself recognizes that
courts often enable and oblige the state to take measures. My learned brother
also arrives at the conclusion that the state is indirectly discriminating against
the queer community but fails to exercise the power vested in this Court
by Article 32 to alleviate this discrimination in any way. This Court is not
through judicial diktat creating a legal regime exclusively for persons of the
queer community but merely recognising the duty of the State to recognise
the entitlements ﬂowing from exercising the right to choose a life partner.
332. Bhat, J. states that no one has contended that two queer persons
have the right of a sustained partnership which is traceable to Articles 19(1)
(a), (c), (d) and the right to conscience under Article 25. This is not true,
as demonstrated by the segment of this judgment on the submissions made
by the petitioners.285
333. Bhat, J. has held that:
a. The classiﬁcation in a legislation is to be discerned by gathering
the object sought to be achieved by the enactment. The object of
the SMA was to enable inter-faith heterosexual marriage. The
classiﬁcation is therefore between same-faith heterosexual couples

285 Illustratively, see the submissions of (i) Dr Abhishek Manu Singhvi (at paragraph
21(d) of this judgment); (ii) Mr. Raju Ramachandran (at paragraph 22(a) of this
judgment); (iii) Mr KV Vishwanathan (at paragraph 23(f) of this judgment); (iv) Mr.
Anand Grover (at paragraph 25(e) of this judgment); (v) Dr. Menaka Guruswamy
(at paragraph 27(d) of this judgment); (vi) Ms. Anitha Shenoy (at paragraph 31(a) of
this judgment).
1412 SUPREME COURT REPORTS [2023] 16 S.C.R.

and inter-faith heterosexual couples. It does not discriminate
against queer persons; and
b. The test for discrimination is not the object of the statute but its
eﬀect and impact. The eﬀect of the state regulating marriage only
for heterosexual couples is that it “adversely impacts” them, “results
in their exclusion,” “results in denial of entitlements / beneﬁts,”
and that “this injustice and inequity results in discrimination.” The
state must address “this deprivation” and take “remedial action.”
My learned brother contradicts himself when he holds that the SMA
is not discriminatory by relying on its object, on the one hand, and that the
state has indirectly discriminated against the queer community because it is
the eﬀect and not the object which is relevant, on the other. My learned
brother discusses in detail the deprivation, exclusion, and discrimination
faced by the queer community. In eﬀect, he: (i) recognizes that they have
a right not to be discriminated against; and (ii) holds that the actions of the
state have the eﬀect of discriminating against them. However, he does not
take the step which logically follows from such a ruling which is to pass
directions to obviate such discrimination and ensure the realization of the
rights of the queer community. I cannot bring myself to agree with this
approach. The realization of a right is eﬀectuated when there is a remedy
available to enforce it. The principle of ubi jus ibi remedium (that is, an
infringement of a right has a remedy) which has been applied in the context
of civil law for centuries cannot be ignored in the constitutional context.
Absent the grant of remedies, the formulation of doctrines is no more than
judicial platitude.
334. Bhat, J highlights that the central question which arises for the
consideration of this Court is whether the absence of law or a regulatory
framework, or the failure of the State to enact law, amounts to discrimination
that is protected under Article 15. He states that “there is no known
jurisprudence or case law (yet) pointing to the absence of law being
considered as discrimination as understood under Article 15.” Here, I would
like to sound a note of caution (which, though obvious, bears repetition) – the
manner in an issue is framed impacts the analysis of the issue. In fact, Bhat,
J’s reasoning deviates from the jurisprudence that this Court has developed
on the interpretation of Article 15. Bhat, J’s reasoning assesses the ‘objective’
of a law instead of its ‘eﬀect. This is best understood with the help of an
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1413
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

example. Suppose the state were to enact a law which enabled only citizens
of a particular caste to avail the services of a particular government hospital
but which did not expressly prohibit members of other castes from availing
its services. This law contains various conditions which must be satisﬁed
before services of the hospital can be availed (such as a list of diseases
which it treats or how advanced a particular disease is). This law can be
understood as being an “enabling law” or a law which “regulates” or it can
be understood (in its true sense) as a law which has the eﬀect of excluding
certain groups on the basis of prohibited markers of identity. This remains
true not only of a hospital but of any service or scheme or institution that
one can imagine. Hence, what is framed as the “absence of a law” or an
“enabling law” can have the same restrictive eﬀect as a law which expressly
bars or prohibits certain actions or excludes certain groups.
335. I disagree with the observations of my learned brother that the
State has a positive obligation under Article 21 but such an obligation cannot
be read into other fundamental rights other than Article 21. I reiterate the
observations made in Section D(ix)(a).
336. Bhat, J. distinguishes the judgments in Vishaka (supra), Common
Cause (supra) and NALSA (supra) from the present case by holding that in
each of these cases, directions were passed because the “inadequacies …
were acute and intolerable” and faced by “entire groups.” However, he does
not explain why the inadequacies faced by the queer community in this case
are mild or tolerable. There is neither a test nor standard known to law by
which discrimination, or the violation of a fundamental right, must reach a
level of intolerability for this Court to exercise its jurisdiction. Regardless
of the severity of the violation, it is the duty of this Court to protect the
exercise of the right in question. Further, in this case too, the rights of an
“entire group” (being the queer community) are at issue.
337. The opinion of Bhat, J. highlights that the reading of the
Adoption Regulations to permit unmarried couples to adopt would
have ‘disastrous outcomes’ because the law, as it stands today, does not
guarantee the protection of the child of unmarried parents adopting jointly.
A reading of the numerous laws relating to the rights of children qua parents
indicates that the law does not create any distinction between children
of married and unmarried couples so long as they are validly adopted.
Section 12 of the Hindu Adoptions and Maintenance Act 1956 states that
1414 SUPREME COURT REPORTS [2023] 16 S.C.R.

an adopted child shall be deemed to be the child of their adopted parents
for all purposes from the date of adoption. Similarly, Section 63 of the
JJ Act also creates a deeming ﬁction. The provision states that a child in
respect of whom an adoption order is issued shall become the child of the
adoptive parents and the adoptive parents shall become the parents of the
child as if the child had been born to the adoptive parents, including for
the purposes of intestacy.
338. In view of the deeming ﬁction created by Section 12 of the
Hindu Adoptions and Maintenance Act 1956 and Section 63 of the JJ Act,
an adopted child is a legitimate child of the adopting couple. The manner
of determination of legitimacy prescribed by Section 112 of the Indian
Evidence Act 1872286 shall not apply in view of the deeming ﬁction created
by Section 12 of the Hindu Adoptions and Maintenance Act 1956 and
Section 63 of the JJ Act. Thus, all the beneﬁts which are available under
the law to a legitimate child (who has been validly adopted) of a married
couple will equally be available to the legitimate child of an unmarried
couple. For example, Section 20 of the Hindu Adoptions and Maintenance
Act 1956 which provides that a Hindu is to maintain their children does
not make any distinction between a legitimate child of a married and an
unmarried couple. Similarly, succession law in India does not diﬀerentiate
between the child of a married and an unmarried couple if the child has
been adopted by following the due process of law. 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. My learned brother has also failed
to address whether Regulation 5(3) is discriminatory for distinguishing
between married and unmarried couples for the purpose of adoption and
for the disproportionate impact that it has on the members of the queer
community while simultaneously holding that “the State cannot, on any
account, make regulations that are facially or indirectly discriminatory
on the ground of sexual orientation.”

286 The provision confers legitimacy on a child born during the continuance of a valid
marriage or within two eighty days since the dissolution of marriage.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1415
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

F* Directions to obviate discrimination
339. Counsel for the petitioners and some counsel for the respondents
advanced extensive submissions on the various forms of violence and
discrimination that society and the state machinery inﬂict upon the queer
community, and especially queer couples. This has been discussed in detail
in the prefatory part of the judgment. Counsel sought directions to obviate
such violence and discrimination.
a. The Union Government, State Governments, and Governments of
Union Territories are directed to:
i. Ensure that the queer community is not discriminated against
because of their gender identity or sexual orientation;
ii. Ensure that there is no discrimination in access to goods and
services to the queer community, which are available to the
public;
iii. Take steps to sensitise the public about queer identity, including
that it is natural and not a mental disorder;
iv. Establish hotline numbers that the queer community can contact
when they face harassment and violence in any form;
v. Establish and publicise the availability of ‘safe houses’ or Garima
Grehs in all districts to provide shelter to members of the queer
community who are facing violence or discrimination;
vi. Ensure that “treatments” oﬀered by doctors or other persons,
which aim to change gender identity or sexual orientation are
ceased with immediate eﬀect;
vii. Ensure that inter-sex children are not forced to undergo operations
with regard only to their sex, especially at an age at which they
are unable to fully comprehend and consent to such operations;
viii. Recognize the self-identiﬁed gender of all persons including
transgender persons, hijras, and others with sociocultural
identities in India, as male, female, or third gender. No person
shall be forced to undergo hormonal therapy or sterilisation or

* Ed. Note: PART F
1416 SUPREME COURT REPORTS [2023] 16 S.C.R.

any other medical procedure either as a condition or prerequisite
to grant legal recognition to their gender identity or otherwise;
b. The appropriate Government under the Mental Healthcare Act
must formulate modules covering the mental health of queer persons in
their programmes under Section 29(1). Programmes to reduce suicides and
attempted suicides (envisaged by Section 29(2)) must include provisions
which tackle queer identity;
c. The following directions are issued to the police machinery:
i. There shall be no harassment of queer couples by summoning them
to the police station or visiting their places of residence solely to
interrogate them about their gender identity or sexual orientation;
ii. They shall not force queer persons to return to their natal families
if they do not wish to return to them;
iii. When a police complaint is ﬁled by queer persons alleging that
their family is restraining their freedom of movement, they shall
on verifying the genuineness of the complaint ensure that their
freedom is not curtailed;\
iv. When a police complaint is ﬁled apprehending violence from
the family for the reason that the complainant is queer or is in a
queer relationship, they shall on verifying the genuineness of the
complaint ensure due protection; and
v. Before registering an FIR against a queer couple or one of the parties
in a queer relationship (where the FIR is sought to be registered
in relation to their relationship), they shall conduct a preliminary
investigation in terms of Lalita Kumari v. Government of U.P287,
to ensure that the complaint discloses a cognizable oﬀence. The
police must ﬁrst determine if the person is an adult. If the person
is an adult and is in a consensual relationship with another person
of the same or diﬀerent gender or has left their natal home of their
own volition, the police shall close the complaint after recording
a statement to that eﬀect.

287 (2014) 2 SCC 1
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1417
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

G* Conclusions and orders of enforcement
340. In view of the discussion above, the following are our conclusions:
a. This Court is vested with the authority to hear this case. Under
Article 32, this Court has the power to issue directions, orders, or
writs for the enforcement of the rights in Part III;
b. Queerness is a natural phenomenon known to India since ancient
times. It is not urban or elite;
c. There is no universal conception of the institution of marriage,
nor is it static. Under Articles 245 and 246 of the Constitution
read with Entry 5 of List III to the Seventh Schedule, it lies within
the domain of Parliament and the state legislatures to enact laws
recognizing and regulating queer marriage;
d. Marriage has attained signiﬁcance as a legal institution largely
because of regulation by the state. By recognizing a relationship
in the form of marriage, the state grants material beneﬁts exclusive
to marriage;
e. The State has an interest in regulating the ‘intimate zone’ to
democratize personal relationships;
f. The issue of whether the Constitution recognizes the right to marry
did not arise before this Court in Justice KS Puttaswamy (9J)
(supra), Shaﬁn Jahan (supra), and Shakti Vahini (supra);
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 SMA or read words into the SMA because of its institutional
limitations. This Court cannot read words into the provisions of

* Ed. Note: PART G
1418 SUPREME COURT REPORTS [2023] 16 S.C.R.

the SMA and provisions of other allied laws such as the ISA and
the HSA 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;
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1419
OF INDIA [DR. DHANANJAYA Y CHANDRACHUD, CJI]

o. The state must enable the LGBTQ community to exercise its
rights under the Constitution. Queer persons have the right to
freedom from coercion from their natal families, agencies of the
state including the police, and other persons;
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; and
s. We record the assurance of the Solicitor General that the Union
Government will constitute a Committee chaired by the Cabinet
Secretary for the purpose of deﬁning and elucidating the scope of
the entitlements of queer couples who are in unions. The Committee
shall include experts with domain knowledge and experience in
dealing with the social, psychological, and emotional needs of
persons belonging to the queer community as well as members of
the queer community. The Committee shall before ﬁnalizing its
decisions conduct wide stakeholder consultation amongst persons
belonging to the queer community, including persons belonging to
marginalized groups and with the governments of the States and
Union Territories.
1420 SUPREME COURT REPORTS [2023] 16 S.C.R.

The Committee shall in terms of the exposition in this judgment
consider the following:
i. Enabling partners in a queer relationship (i) to be treated as a part
of the same family for the purposes of a ration card; and (ii) to
have the facility of a joint bank account with the option to name
the partner as a nominee, in case of death;
ii. In terms of the decision in Common Cause v. Union of India288,
as modiﬁed by Common Cause v. Union of India289, medical
practitioners have a duty to consult family or next of kin or
next friend, in the event patients who are terminally ill have
not executed an Advance Directive. Parties in a union may be
considered ‘family’ for this purpose;
iii. Jail visitation rights and the right to access the body of the deceased
partner and arrange the last rites; and
iv. Legal consequences such as succession rights, maintenance,
ﬁnancial beneﬁts such as under the Income Tax Act 1961, rights
ﬂowing from employment such as gratuity and family pension
and insurance.
The report of the Committee chaired by the Cabinet Secretary shall
be implemented at the administrative level by the Union Government and
the governments of the States and Union Territories.
341. The petitions in these proceedings are disposed of in terms of
this judgment.
342. Pending applications (if any) are disposed of.

288 (2018) 5 SCC 1
289 2023 SCC OnLine SC 99
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1421
UNION OF INDIA

SANJAY KISHAN KAUL, J.
1.This case presents a new path and a new journey in providing legal
recognition to non-heterosexual relationships.
2. I have had the beneﬁt of the exhaustive and erudite judgment of
the Hon’ble Chief Justice Dr. D.Y. Chandrachud; which enumerates the
prevalence of these relationships in history, the Constitutional recognition
of the right to form unions (in other words ‘civil unions’), and the necessity
of laying down guidelines to protect non-heterosexual unions. In a way, this
is a step forward from the decriminalisation of private consensual sexual
activities by the LGBTQ+ community in Navtej Singh Johar & Ors. vs.
Union of India, Through Secretary, Ministry of Law & Justice.1
3. The judgment penned down by the Hon’ble Chief Justice considers
all aspects of the challenge. However, the subject matter itself persuades
me to pen down a few words while broadly agreeing with his judgment.
Historical prevalence of non-heterosexual unions
4. In their submissions, the Respondents raised doubts about the social
acceptability of non-heterosexual relationships. Before we address the same,
it is no longer res integra that the duty of a constitutional Court is to uphold
the rights enshrined in the Constitution and to not be swayed by majoritarian
tendencies or popular perceptions. This Court has always been guided by
constitutional morality and not by social morality.2
5. A pluralistic social fabric has been an integral part of Indian culture
and the cornerstone of our constitutional democracy.3 Non-heterosexual
unions are well-known to ancient Indian civilisation as attested by various
texts, practices, and depictions of art. These markers of discourse reﬂect
that such unions are an inevitable presence across human experience. Hindu
deities were multi-dimensional and multi-faceted and could appear in
diﬀerent forms. One of the earliest illustrations is from the Rig Veda itself.
Agni, one of the most important deities, has been repeatedly described as

1 2018 (1) SCC 791.
2 Navtej (Supra).
3 Maqbool Fida Husain v. Rajkumar Pandey, 2008 Cri LJ 4107.
1422 SUPREME COURT REPORTS [2023] 16 S.C.R.

the “child of two births” (dvijanman), “child of two mothers” (dvimatri),
and occasionally, “child of three mothers” (the three worlds).4
6. In Somdatta’s Kathasaritsagara, same-sex love is justiﬁed in the
context of rebirth. Somaprabha falls in love with Princess Kalingasena and
claims that she loved her in her previous birth as well.5 Hindu mythology is
replete with several such examples. We need not be detained in an eﬀort to
capture each of them. The signiﬁcant aspect is that same-sex unions were
recognised in antiquity, not simply as unions that facilitate sexual activity,
but as relationships that foster love, emotional support, and mutual care. 6
7. Even in the Suﬁ tradition, devotion is often constructed around the
idea of love as expressed through music and poetry. In several instances,
the human relationship with the divine was expressed by mystics through
the metaphor of same-sex love.7 Love across genders is also reﬂected
in the Rekhti tradition of Lucknow. This tradition is centred around the
practice of male poets writing in a female voice and is characterised by its
homoeroticism. Signiﬁcantly, the depictions of same-sex relationships are
charged with aﬀects such as love, friendship, and companionship. 8
8. Marriage as an institution developed historically and served various
social functions. It was only later in its long history that it came to be legally
recognized and codiﬁed.9 However, these laws regulated only one type of
socio-historical union, i.e., the heterosexual union.
9. It would thus be misconceived to claim that non-heterosexual
unions are only a facet of the modern social milieu. The objective of
penning down this section is to provide perspective on the existence of

4 Ruth Vanita and Saleem Kidwai, Same-sex love in India: Readings from Literature &
History (Palgrave, 2001), p. 15.
5 Ruth Vanita and Saleem Kidwai (Supra), p. 68.
6 Devdutt Pattnaik, The Man who was a Woman & Other Queer Tales (Routledge,
2002).
7 Ruth Vanita and Saleem Kidwai (supra), p. 115.
8 Manjari Shrivastava, Lesbianism in Nineteenth Century Erotic Urdu Poetry “Rekhti”,
Proceedings of the Indian History Congress, 68, 965.
9 Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (Penguin,
2005), p. 3-5.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1423
UNION OF INDIA [SANJAY KISHAN KAUL, J.]

non-heterosexual unions, despite continued eﬀorts towards their erasure
by the heteronormative majority.
10. Non-heterosexual unions are entitled to protection under our
Constitutional schema. In Maqbool Fida Husain, I had observed: “Our
Constitution by way of Article 19(1) which provides for freedom of thought
and expression underpins a free and harmonious society. It helps to cultivate
the virtue of tolerance. It is said that the freedom of speech is the matrix,
the indispensable condition of nearly every other form of freedom. It is the
wellspring of civilization and without it liberty of thought would shrivel.” 10
The necessity of recognizing civil unions
11. The judgment of the Hon’ble Chief Justice notes that the right to
form unions is a feature of Articles 19 and 21 of the Constitution. Therefore,
the principle of equality enumerated under Articles 14 and 15 demands that
this right be available to all, regardless of sexual orientation and gender.
Having recognized this right, this Court has taken on board the statement of
the Learned Solicitor General to constitute a Committee to set out the scope
of beneﬁts available to such unions. I agree with the Hon’ble Chief Justice.
12. The Petitioners’ submissions demand that the Special Marriage
Act, 187211 be tested on the touchstone of Part III of the Constitution, i.e.,
whether they are discriminatory on the basis of sex and thus violative of
Articles 14 and 15 of the Constitution. It is now settled law that Article 14
contemplates a two-pronged test: (i) whether the classiﬁcation made by the
SMA is based on intelligible diﬀerentia; and (ii) whether the classiﬁcation
has a reasonable nexus to the objective sought to be achieved by the State.12
The ﬁrst prong, i.e., intelligible diﬀerentia implies that the diﬀerentia
should be clear and not vague. Section 4 of the SMA is clear in so far as
it contemplates a marriage between a male who has completed the age of
twenty-one years and a female at the age of eighteen years. In deﬁning the
degrees of prohibited relationships, Section 2(b) of the SMA exclusively
applies to a relationship between a man and a woman. Thus, by explicitly
referring to marriage in heterosexual relationships, the SMA by implication

10 Maqbool Fida Husain (supra).
11 Hereinafter referred to as “the SMA”.
12 D.S. Nakara v. Union of India, 1983 (2) SCR 165.
1424 SUPREME COURT REPORTS [2023] 16 S.C.R.

creates two distinct and intelligible classes – i.e., heterosexual partners who
are eligible to marry and non-heterosexual partners who are ineligible.
13. Under the second prong, the Court examines whether the
classiﬁcation is in pursuit of a State objective. The SMA’s Statement of
Objects and Reasons assists us in determining the objective. It is reproduced
hereunder:
“Statement of Objects and Reasons. —This Bill revises and seeks
to replace the Special Marriage Act of 1872 so as to provide a special
form of marriage which can be taken advantage of by any person in
India and by all Indian nationals in foreign countries irrespective of
the faith which either party to the marriage may profess. The parties
may observe any ceremonies for the solemnisation of their marriage,
but certain formalities are prescribed before the marriage can be
registered by the Marriage Oﬃcers. For the beneﬁt of Indian citizens
abroad, the Bill provides for the appointment of Diplomatic and
Consular Oﬃcers as Marriage Oﬃcers for solemnising and registering
marriages between citizens, of India in a foreign country.
2. Provision is also sought to be made for permitting persons who
are already married under other forms of marriage to register their
marriages under this Act and thereby avail themselves of these
provisions.
3. The bill is drafted generally on the lines of the existing Special
Marriage Act of 1872 and the notes on clauses attached hereto explain
some of the changes made in the Bill in greater detail.” (Emphasis
supplied).
14. From the above, we see that the SMA postulates a ‘special
form of marriage’ available to any person in India irrespective of faith.
Therefore, the SMA provides a secular framework for solemnization and
registration of marriage. Here, I respectfully disagree with my brother Justice
Ravindra Bhat, that the sole intention of the SMA was to enable marriage
of heterosexual couples exclusively. To my mind, the stated objective of
the SMA was not to regulate marriages on the basis of sexual orientation.
This cannot be so as it would amount to conﬂating the diﬀerentia with the
object of the statute. Although substantive provisions of the SMA confer
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beneﬁts only on heterosexual relationships, this does not automatically reﬂect
the object of the statute. For as we are all aware, we often act in ways that
do not necessarily correspond to our intent. Therefore, we cannot look at
singular provisions to determine substantive intent of the statute. Doing so
would be missing the wood for the trees.
15. If the intent of the SMA is to facilitate inter-faith marriages, then
there would be no rational nexus with the classiﬁcation it makes, i.e.,
excluding non-heterosexual relationships.
16. In any event, regulating only heterosexual marriages would not be
a legitimate State objective. It is settled law that the Court can also examine
the normative legitimacy and importance of the State objective,13 more so in
a case such as this where sex (and thereby sexual orientation) is an ex-facie
protected category under Article 15(1) of the Constitution. An objective to
exclude non-heterosexual relationships would be unconstitutional, especially
after this Court in Navtej has elaborately proscribed discrimination on the
basis of sexual orientation.14 Therefore, the SMA is violative of Article 14.
17. However, I recognize that there are multifarious interpretive
diﬃculties in reading down the SMA to include marriages between non-
heterosexual relationships. These have been enumerated in signiﬁcant detail
in the opinions of both the Hon’ble Chief Justice and Hon’ble Justice Bhat.
I also agree that the entitlements devolving from marriage are spread out
across a proverbial ‘spider’s web’ of legislations and regulations. As rightly
pointed out by the Learned Solicitor General, tinkering with the scope of
marriage under the SMA can have a cascading eﬀect across these disparate
laws.
18. In fact, the presence of this web of statutes shows that discrimination
under the SMA is but one example of a larger, more deeper form of social
discrimination against non-heterosexual people that is pervasive and
structural in nature. Ordinarily, such an intensive form of discrimination
should require keener and more intensive judicial scrutiny. However, due
to limited institutional capacity, this Court does not possess an adequate
form of remedy to address such a violation. As pointed out in the judgment

13 Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
14 (supra).
1426 SUPREME COURT REPORTS [2023] 16 S.C.R.

of Hon’ble the Chief Justice, substantially reading into the statute is
beyond the powers of judicial review and would be under the legislative
domain. It would also not be prudent to suspend or strike down the SMA,
given that it is a beneﬁcial legislation and is regularly and routinely used
by heterosexual partners desirous of getting married. For this reason,
this particular methodology of recognizing the right of non-heterosexual
partners to enter into a civil union, as opposed to striking down provisions
of the SMA, ought to be considered as necessarily exceptional in nature.
It should not restrict the Courts while assessing such deep-seated forms of
discrimination in the future.
19. Non-heterosexual unions and heterosexual unions/marriages ought
to be considered as two sides of the same coin, both in terms of recognition
and consequential beneﬁts. The only deﬁciency at present is the absence of
a suitable regulatory framework for such unions. This Court in Navtej noted
that: “history owes an apology to the members of this community and their
families, for the delay in providing redressal for the ignominy and ostracism
that they have suﬀered through the centuries.” I believe that this moment
presents an opportunity of reckoning with this historical injustice and casts
a collective duty upon all constitutional institutions to take aﬃrmative steps
to remedy the discrimination.
20. Thus, the next step in due course, would be to create an ediﬁce of
governance that would give meaningful realization to the right to enter into
a union, whether termed as marriage or a union.
Charting a course: Interpreting statutes using Constitutional
principles
21. As noted above, the beneﬁts pertaining to marriage are spread
out across several incidental legislations and regulations. These statutes
presently do not explicitly extend to civil unions. However, now that we
have recognized the right to enter into civil unions; such statutes must be
read in a manner to give eﬀect to this right, together with the principle of
equality and non-discrimination under Articles 14 and 15. In other words,
statutory interpretation must be in consonance with constitutional principles
that are enumerated by this Court. Needless to say, this should not detract
from the Committee’s task of ironing out the nitty-gritties of the entitlements
of civil unions.
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22. This exercise is necessary to foster greater coherence within the
legal system as a whole, both inter se statutes and between statutes and
the Constitution. Reading statutes in this manner will facilitate ‘inter-
connectedness’ by allowing constitutional values to link statutes within the
larger legal system. Constitutional values emanate from a living document
and thus are constantly evolving. Applying constitutional values to interpret
statutes helps update statutes over time to reﬂect changes since the statute’s
enactment. Ordinarily, constitutional principles come in contact with statutes
when the validity of such statutes is being tested. However, constitutional
values should play a more consistent role, which can be through the everyday
task of statutory interpretation.15
23. This interpretive technique has gained currency across jurisdictions.
In the famous Lüth case, the Federal Constitutional Court of Germany
recognized that the constitutional right of freedom of expression as
enumerated under the German Basic Law also ‘radiates’ into the statutory
law of defamation. The Court noted that:
“But far from being a value-free system the Constitution erects an
objective system of values in its section on basic rights, and thus
expresses and reinforces the validity of the basic rights. This system
of values, centring on the freedom of the human being to develop in
society, must apply as a constitutional axiom throughout the whole
legal system: it must direct and inform legislation, administration,
and judicial decision.”16
24. We may note that the Constitution of South Africa has an explicit
provision which directs that the interpretation of statutory law shall be in
‘due regard to the spirit, purport and objects’ of the chapter on fundamental
rights.17 The Constitutional Court of South Africa in Du Plessis v. De Klerk
succinctly observed the objective and scope of this provision:
“The common law is not to be trapped within the limitations of its past.
It needs not to be interpreted in conditions of social and constitutional

15 William N. Eskridge, Public Values in Statutory Interpretation, 137(4) UPenn Law
Rev. 1007, 1009.
16 BVerfGE 7, 198 (Lüth-decision).
17 Section 35(3) of the Constitution of the Republic of South Africa.
1428 SUPREME COURT REPORTS [2023] 16 S.C.R.

ossiﬁcation. It needs to be revisited and revitalized with the spirit of
the constitutional values deﬁned in Chapter 3 of the Constitution and
with full regard to the purport and objects of that Chapter.”18
25. Although no such provision exists in the Indian Constitution, our
Courts are no stranger to interpreting statutory laws through fundamental
rights. In Central Inland Water Transport Corpn. v Brojo Nath Ganguly, the
Supreme Court was concerned with the interpretation of ‘public policy’
under Section 23 of the Indian Contract Act, 1872.19 In this context, this
Court observed:
“It is thus clear that the principles governing public policy must be
and are capable, on proper occasion, of expansion or modiﬁcation.
Practices which were considered perfectly normal at one time have
today become obnoxious and oppressive to public conscience. If there
is no head of public policy which covers a case, then the court must in
consonance with public conscience and in keeping with public good
and public interest declare such practice to be opposed to public policy.
Above all, in deciding any case which may not be covered by authority
our courts have before them the beacon light of the Preamble to the
Constitution. Lacking precedent, the court can always be guided by
that light and the principles underlying the Fundamental Rights and
the Directive Principles enshrined in our Constitution.”
26. This technique of reading in Constitutional values should be used
harmoniously with other canons of statutory interpretation. In this context,
legislations that confer beneﬁts on the basis of marriage should be construed
to include civil unions as well, where applicable.
The need for an anti-discrimination law
27. I am wholeheartedly in agreement with the opinion of the Hon’ble
Chief Justice that there is a need for a separate anti-discrimination law
which inter alia prohibits discrimination on the basis of sexual orientation.
Presently, there are several laws that have an anti-discrimination aspect
to them. However, they are fragmented and may fail to capture the

18 1996 (3) SA 850.
19 (1986) 3 SCC 156.
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multitudinous forms of discrimination. Another compelling reason for a law
that places a horizontal duty of anti-discrimination is provided by the spirit
of Article 15, which prohibits discrimination by both the State and private
actors. Presently, although the Court assumes its role as the ‘sentinel on the
qui vive’, the only method to enforce this Constitutional right under Article
15 would be through its writ jurisdiction. There are signiﬁcant challenges for
marginalized communities to access this remedy. Therefore, the proliferation
of remedies through an anti-discrimination statute can be a ﬁtting solution.
Such legislation would also be in furtherance of the positive duty of the
State to secure social order and to promote justice and social welfare under
Article 38 of the Constitution.
28. My suggestions for an anti-discrimination law are as follows.
First, such a law should recognize discrimination in an intersectional
manner. That is to say, in assessing any instance of discrimination, the
Court cannot conﬁne itself to a singular form of discrimination. Instead,
discrimination must be looked at as a conﬂuence of factors – as identities
and individual instances of oppression that ‘intersect’ and create a distinct
form of disadvantage.20 Discrimination laws can only be eﬀective if they
address the types of inequality that have developed in the given society.
This principle has already been recognized by this Court in Navtej.21
Second, the duties under an anti-discrimination law can be proportionately
distributed between diﬀerent actors depending on factors such as the nature
of functions discharged, their control over access to basic resources, and
the impact on their negative liberty.22 Third, an anti-discrimination statute
must also enumerate methods to redress existing discrimination and bridge
the advantage gap. This could be through policies that distribute beneﬁts
to disadvantaged groups.23
Equal rights to equal love
29. The principle of equality mandates that non-heterosexual unions are
not excluded from the mainstream socio-political framework. However, the

20 Shreya Atrey, Intersectional discrimination (Oxford University Press, 2019), p. 41.
21 (supra).
22 Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015),
p. 212-213.
23 Khaitan (supra), p. 39.
1430 SUPREME COURT REPORTS [2023] 16 S.C.R.

next step would be to examine the framework itself, which cannot be said
to be neutral. On the contrary, it is inherently value-laden. One particularly
pernicious value is patriarchy, which manifests in various oppressive ways.
Gendered stereotypes and sex-based violence are lived realities of many.
This is something both society and law recognize.
30. I believe that the legal recognition of non-heterosexual unions can
challenge culturally ordained gender roles even in heterosexual relationships.
For a long period of time, marriage has been viewed in gendered terms.
That is to say, one’s status as husband or wife determines their duties and
obligations towards each other, their family, and society. Marriage enforces
and reinforces the linkage of gender with power by husband/wife categories,
which are synonymous with social power imbalances between men and
women.24 This is notwithstanding the fact that there has been progressive
awareness of these issues. Non-heterosexual unions can make an important
contribution towards dismantling this imbalance while emphasizing
alternative norms. As Eskridge puts it: “In a man-man marriage where tasks
are divided up along traditional lines, a man will be doing the accustomed
female role of keeping house. It is this symbolism that represents the deeper
challenge to traditional gender roles. The symbolism can be expressed in
the argot of normalization. Once female-female and male-male couples can
marry, the wife-housekeeper/husband-breadwinner model for the family
would immediately become less normal, and perhaps even abnormal over
time. The wife as someone who derives independent satisfaction from her
job outside the home would immediately become a little bit more normal.”25
31. In a non-heterosexual union, duties and obligations are not primarily
dictated by culturally ordained gender norms. In other words, both partners
are not limited by extant gender norms to shape their relationship, including
the division of labour. For instance, studies have found that partners in non-
heterosexual relationships share unpaid labour more equally than those in

24 Nan. D. Hunter, ‘Marriage, Law and Gender: A Feminist Inquiry’ in Sex Wars: Sexual
Dissent and Political Culture (Lisa Duggan and Nan. D. Hunter eds, Routledge, 2006)
p. 109 – 110.
25 William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights,
(Routledge, 2002) p. 322.
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heterosexual relationships.26 This is not to suggest that other imbalances
of power do not exist within non-heterosexual unions. Nevertheless, non-
heterosexual unions are not limited by the legally and socially sanctioned
gendered power dynamic that can be present in heterosexual unions. 27
32. Legal recognition aids social acceptance, which in turn increases
queer participation in public spaces. Through the medium of legal
recognition, queer persons will have a greater opportunity to be ‘seen’ and
‘heard’ in ways not previously possible. Queer expression will help facilitate
an expansive social dialogue, cutting across communities and generations.
This dialogue will help us reimagine all our relationships in a manner that
emphasizes values such as mutual respect, companionship, and empathy.
Conclusion
33. Is this the end where we have arrived? The answer must be an
emphatic ‘no’. Legal recognition of non-heterosexual unions represents a
step forward towards marriage equality. At the same time, marriage is not
an end in itself. Our Constitution contemplates a holistic understanding
of equality, which applies to all spheres of life. The practice of equality
necessitates acceptance and protection of individual choices. The capacity
of non-heterosexual couples for love, commitment and responsibility is
no less worthy of regard than heterosexual couples. Let us preserve this
autonomy, so long as it does not infringe on the rights of others. After all,
“it’s my life.”28

26 Abbie E. Goldberg et al, The Division of Labor in Lesbian, Gay, and Heterosexual
New Adoptive Parents, 74(4) Journal of Marriage and Family, p. 812; Charlotte J.
Patterson et al, Division of Labor Among Lesbian and Heterosexual Parenting Couples:
Correlates of Specialized Versus Shared Patterns, 11 Journal of Adult Development, p.
179.
27 Rosemary Auchmuty, When Equality is not Equity: Homosexual Inclusion in Undue
Inﬂuence Law, 11 Feminist Legal Studies, 163, 183.
28 ‘Its my life’, a song by Bon Jovi.
“It’s my life
It’s now or never
But I ain’t gonna live forever
I just want to live while I’m alive”.
1432 SUPREME COURT REPORTS [2023] 16 S.C.R.

S. RAVINDRA BHAT, J.
Table of Contents *
I. Nature of marriage as a social institution ......................... 5
II. State interest in regulating social practices, through
legislation ............................................................................ 9
III. Tracing the rights enjoyed by queer persons ................... 17
A. The trinity - autonomous choice, dignity and non-
discrimination .............................................................. 17
i. Importance of personal choice under the
Constitution ......................................................... 17
ii. Dignity as a dimension of equality and all our
liberties................................................................. 19
iii. Equality, non-discrimination and non-exclusion .. 21
B. Rights ﬂowing from previous decisions of this court
relating to the queer community ............................... 24
C. Is there a fundamental right to marry? .................... 26
D. Right to ‘union’, or abiding relationship .................. 29
IV. Positive obligations in furtherance of fundamental
rights................................. ............................................... 31
V. Inapplicability of the Special Marriage Act ..................... 40
A. Challenge to the SMA on the ground of impermissible
classiﬁcation................................................................. 40
B. Interpretation of provisions of SMA ......................... 48
VI. Discriminatory impact on queer couples ......................... 57
VII. Transgender persons in heterosexual persons can marry
under existing law ............................................................. 62
VIII. Issue of joint adoption by queer couples .......................... 63

* Ed Note: Pagination is as per the original judgment.
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A. Not a case of delegated legislation being ultra vires the
parent Act.......... .......................................................... 64
B. Not a case for reading down or other interpretive
construction ................................................................. 67
C. Discriminatory impact of adoption regulations on queer
persons......... ................................................................ 68
IX. Moulding relief.................................................................. 71
X. Conclusion and directions ................................................ 76
XI. Postscript ........................................................................... 80
1. At the centre of the dispute, lies the deﬁnition and the content of
two willing individuals’ right to marry. On the one hand the petitioners
assert that marriage is an evolving social institution, capable of embracing
the union of two willing non-heterosexual, queer or LGBTQ+ (used
interchangeably) individuals and necessitating state recognition; on the
other, the respondents assert that the institution of marriage rests on certain
constant and unchanging premises, the most prominent of which is that it
is a heterosexual union. The task of this Court lies in determining how the
Constitution speaks on the issue.
2. Having had the beneﬁt of reading the draft and revised opinions
circulated by the learned Chief Justice, Dr. Chandrachud, we ﬁnd it necessary
to pen our reasoning and conclusions in this separate judgment. The learned
Chief Justice has recorded in detail the submissions made by counsel, and
claims made; they consequently do not require reiteration. Similarly, the
sections addressing the Union Government’s preliminary objections – i.e.,
the discussion on the court’s authority to hear the case [Section D(i)], and
that queerness is a natural phenomenon that is neither urban or elite [Section
D(ii)], are parts we have no hesitation in agreeing with. However, we do
not agree with the conclusions arrived at by the learned Chief Justice and
the directions issued. We do agree with certain premises and conclusions
that he has recorded – they are: (a) that there exists no fundamental right
to marry under the Constitution; (b) that the Special Marriage Act, 1956
(hereafter “SMA”), is neither unconstitutional nor can it be interpreted in
such a manner so as to enable marriage between queer persons; and that (c)
1434 SUPREME COURT REPORTS [2023] 16 S.C.R.

transgender persons in heterosexual relationships, have the right to solemnize
marriage under existing legal frameworks. We have brieﬂy highlighted our
main points of agreement, and reasoned in more detail those aspects with
which, respectfully, we cannot persuade ourselves to concur. We had the
beneﬁt of perusing the concurring opinion of Narasimha, J. We endorse
those observations and conclusions fully; the reasoning and conclusions
shall be read as supplementing that of the present judgment.
3. The common ground on which the batch of petitions claim relief is
that LGBTQ+ persons are entitled to solemnize and register their marriage –
in other words, they claim a right to legal recognition of their unions within
the marriage fold. The petitioners rely on fundamental rights to equality
and non-discrimination, of dignity and autonomy and of expression and
association, and speciﬁcally, most petitioners focus on Section 4(c) of the
SMA as well as the ﬁrst and second schedules thereof, to state that particular
references to “husband” or “wife” in its provisions are to be read “down”,
and a neutral expression needs to substituted, instead. A few petitioners also
claims that Section 4(c) and 17 of the Foreign Marriage Act, 1969 (hereafter
“FMA”) need to be similarly read down. Some of the prayers also relate to
the right of such couples to adopt under existing laws in India. Some of the
prayers speciﬁcally challenged Chapter II of the SMA– relating to notice
and objections procedure prescribed. However, during the course of hearing,
the court indicated that this was not a question of law that necessitated a 5
judge-bench ruling, and hence this issue was to be left for consideration by
a numerically smaller bench.
I. Nature of marriage as a social institution
4. Marriage, as a social institution predates all rights, forms of political
thought and laws. The institution of family has no known origin in the sense
that, there has been no stage of human existence, in which family was absent
leading to another time in which it emerged. Marriage, however, has been
regarded - for the longest time, as a relationship of man to woman which
is recognized by custom, and thereafter law; it involves certain rights and
duties in the case of both persons entering the union. It is considered to be
one of the most important relationships, as it is not solely the individuals’
happiness and well-being but that of others too, that is aﬀected by their
conduct in it. It has long been regarded as the reason for society’s continuance
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on the one hand, and its building block on the other. What is marriage and
the conceptualisation of its role in society, has undergone change over the
time; it has engaged the attention of philosophers, from Plato to Hegel, Kant
and John Stuart Mill and of religious leaders, like St. Augustine.
5. Diﬀerent traditions view marriage as sacraments, and indissoluble
unions (Hindus and Catholic Christians); Islam regards marriage as both
contractual and sacred; Parsis regard it as both a sacrament and contractual.
Most – if not all, place importance on procreation, creation of family, co-
habitation, shared values as the important markers; at the same time, these
traditions also recognize - in varying degrees, importance of companionship,
spiritual union, friendship and togetherness of the spouses, in every way.
6. The respondents are right, in one sense in underlining that all
conceptions of what constitutes marriage, all traditions and societies, have
by and large, historically understood marriage as between heterosexual
couples. The contexts of culture, social understanding of what constitutes
marriage, in every social order are undoubtedly very important. At the same
time, for the purpose of determining the claims in these petitions, it is also
necessary to mark the progression of what were deemed constitutive and
essential constituents, and essential boundaries within which marriages were
accepted.
7. Marriages have not always been dictated by voluntary choice. In
medieval European societies, when a girl was physically able to consummate
marriage, she was eligible for matrimony. Among the nobility and landed
gentry, the principal consideration for marriage was exchange of property-
in the form of dowry. Thus, it was not uncommon that among the “upper
classes” marriages were loveless and unhappy. The sole reason for marriage
was touted to be procreation, which the church dictated; thus, consummation
of marriage and physical sexual relations were considered the most important
features of every marriage, since this meant the establishment of family.
Among Hindus, barriers of other kinds, such as ban on sagotra and sapinda
marriages, and impermissibility of non-endogamous marriages, was widely
prevalent, for the longest time. Although amongst Muslims, marriage is both
sacramental and contractual, and requires exercise of free will, nevertheless,
it is premised on the agreement of mehar, or the amount the groom would
oﬀer, for the bride. Muslim are permitted to marry others of the same faith, or
1436 SUPREME COURT REPORTS [2023] 16 S.C.R.

from the “People of the Book” (known as Kitabiyas), such as Jews, Sabians
and Christians. No marriage with polytheists is permitted. Similarly, widow
re-marriage amongst Hindus was prohibited. Likewise, injunctions against
inter-caste marriages were widely prevalent. Child marriages were widely
prevalent too. Inter-religious marriages were impossible. In the USA, various
laws had, in the past, prohibited interracial marriages. Arranged marriages
were very common throughout the world until the 18th century.
8. It is, therefore, evident that for long periods, in many societies,
the choice of a matrimonial partner was not free; it was bounded by social
constraints. Much of the time, marriage was seen as an institution meant for
procreation, and sexual union of the spouses. In most societies marriage had
cast “roles” for the spouses; they were fairly inﬂexible, with men controlling
most decisions, and women placed in subordinate positions, with little or
no voice, and, for the longest time, no legal authority, autonomy or agency.
For millennia, custom, tradition, and law subordinated wives to husbands.
Notions of equality of partners or their roles, were uncommon, if not totally
unheard of. All these underwent radical change.
9. The greater part of history shows that choice of a spouse, based on love
or choice played almost no role at all. Enlightenment, and Western thinkers
of the eighteenth century established that pursuit of happiness was important
to life. They advocated marrying for love, instead of status, or wealth or
other considerations. The Industrial Revolution gave impetus to this thought.
Marriages were solemnized and celebrated with increasing frequency, in
Western cultures, based on choice, voluntary consent, and without parental
approval. This movement increased tremendously - as women’s-rights
movement expanded and gained impetus in the nineteenth and twentieth
centuries, wives started being regarded as their husbands’ equals, not their
property. Couples were also enabled to choose whether to have, and if so,
how many children to have. If they were unhappy with each other, they could
divorce - a choice exercised by a large number of couples. Marriage became
primarily a personal contract between two equals seeking love, stability, and
happiness. Therefore, although social mores prevailed in relation to marriage,
traditions and legal regimes were not static; the changes that society underwent
or the forces that brought change, also carried winds that breathed new content,
new contexts and new values, into the institution of marriage.
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10. Law’s progress stresses upon individual’s rights for equality. The
form of marriage, or the legally prescribed procedures assume a secondary
role - they are matters of belief and practice. They cannot be regarded as
the essential content of marriage. Tying thali is necessary in South India
among many Hindu communities; and in some parts the exchange of rings,
garlands and some rituals is necessary in North India. Many Hindu marriage
customs and traditions insist on the saptapadi; amongst Muslims, the nikah
ceremony, witnessed by invitees, and other customary rituals and practices,
is generally followed; Christian customs emphasize on solemnization by
the couples taking marriage vows. The rich diversity of this country and
its pluralism is reﬂected in customary practices surrounding marriage
solemnization, all – if not most of which involve the couple, the members
of their family, and the larger community. Ritualistic celebration of marriage
is considered by some as essential, while many in other sections may deem
that the factum of marriage suﬃcient. For relationships that did not have
customary practice dating back in history, the State enacted law – much
like the petitioners, seek.
11. Therefore, legislations governing inter-caste and inter faith
marriages, and adoption, are two important social relations relating to the
family, through which secularism ﬁnds its base for an egalitarian social order
under the Constitution. The enactment of laws to facilitate this aspect is
testimony of the right of individuals to personal choice and autonomy. For
instance, enactment of the Hindu Marriage (Removal of Disabilities) Act,
1946 enabled persons from the same gotra or pravara to marry. Likewise,
the bar to Hindu widows’ remarriage, was removed by enacting the Hindu
Widows Remarriage Act, 1856. Inter-caste and inter-faith marriages became
a possibility under the SMA after 1954.
12. The ‘legal’ dimension of marriage, in the US – the jurisprudence
of which the petitioners relied on, is markedly diﬀerent from the nature of
marriage in India, and its evolution. This contextual diﬀerence, is of great
relevance, when considering a constitutional question of this kind. Marriage
in countries like the US, was earlier a sacramental institution that ﬂowed
from the Church and its divine authority. However, in modern times, it ﬂows
from the State; which created a ‘license regime’ for marriage. The result is
that marriages may be performed and celebrated with religious traditions
1438 SUPREME COURT REPORTS [2023] 16 S.C.R.

or rituals, that have great meaning personally for the individuals – but the
legality of the marriage, is solely dependent on a validly obtained license.
This regime has since been extended to queer couples as well in the US. The
law relating to marriage in India, however, has had a diﬀerent trajectory. A
deeply religious aﬀair, it gained its legitimacy and legal status from personal
law and customs, that govern this aspect of life – for members belonging
to all faiths. The matrimonial laws that have been enacted– were a result
of the codiﬁcation project (in the 19th and 20th century), which expressly
recognise these social practices, while continuing to oﬀer space to unwritten
customary practices as well (barring aspects like marriageable age, etc. which
are regulated by law). As mentioned, the SMA is the only avenue for a form
of secular/non-religious ‘civil marriage’ – which too still ties into personal
law for succession, and other aspects. The Indian context, is elaborated in
the following Part II.
II. State interest in regulating social practices, through legislation
13. Before undertaking a study on whether there is a fundamental
right to marry, and an obligation on the State to create such an avenue, it is
necessary to traverse the brief history of state intervention in social practices
including in relation to marriage. These laws were enacted in relation to
diﬀerent subject areas. However, a pattern certainly emerges, on the limited
scope of interference.
14. The social practices resulting in stigma and exclusion of large
sections of society, impelled the Constitution framers to frame speciﬁc
provisions like Article 15(1) and (2), Articles 17, 23 and 24, which was left
to the Parliament to ﬂesh out through speciﬁc legislation. This resulted in
statutes such as the Protection of Civil Rights Act, 1955, Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Bonded
Labour System (Abolition) Act, 1976, Immoral Traﬃc (Prevention) Act,
1956, the Prohibition of Employment as Manual Scavengers and their
Rehabilitation Act, 2013, and their respective amendments. The laws
removing barriers which prevented large sections of society from entering
into temples and places of public worship, is another example.
15. In a somewhat similar vein, legislative activity, as aimed at bringing
about gender parity through prohibiting prevailing practices that further
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inequality and sometimes even criminalizing certain customs, resulted in
legislations such as the Equal Remuneration Act, 1976 (which guaranteed
equal pay for equal work regardless of the sex of the worker), the Dowry
Prohibition Act, 1961 as amended subsequently, introduction of provisions
in criminal law which gave teeth to such provisions [Sections 498A and
304B of the Indian Penal Code, 1860 (“IPC”), and Section 113A and 113B
of the Evidence Act, 1872 which enabled courts to raise presumptions in
the trial of such oﬀences].
16. Other practices aimed at realization of social goals and furthering
the mandate of Article 15(3) in respect of children such as the right to free
universal education under Article 21A of the Constitution, and the Right to
Free Education Act, 2009; The Child Labour (Prohibition and Regulation)
Act, 1986; Protection of Children from Sexual Oﬀences Act, 2012, the
Juvenile Justice (Care and Protection) Act 2016 (hereafter, “JJ Act”), etc.
In all these, the Parliament or the concerned legislatures donned the role of
reformers, and furthered the express provisions of the Constitution, enjoining
State action, in furtherance of Articles 15(2), 15(3), 17, 23 and 24.
17. Marriage has historically been a union solemnized as per customs,
or personal law tracing its origin to religious texts. Legislative activity, in
the personal law ﬁeld, so far has been largely, though not wholly, to codify
prevailing customs and traditions, and regulating them, only where needed.
The instances that stand out, are the enactment of the Indian Succession
Act, 1925, Hindu Women’s Right to Property Act, 1937, Hindu Marriage
Act, 1955, the Hindu Adoptions and Maintenance Act, 1956, the Hindu
Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956,
the Indian Divorce Act, 1869 (as amended in 2001), the Muslim Personal
Law (Shariat) Application Act, 1937; and the Anand Marriage Act, 1909
(as amended). These laws mostly codiﬁed traditions and customs, which
existed, and to an extent, regulated marriages and succession laws. These
laws also sought to introduce reforms: for the ﬁrst time, monogamy was
enacted as a norm applicable to all Hindus; likewise, the option of divorce
was enacted, together with grounds on which or other remedies (like judicial
separation) could be sought. Further, the minimum age of marriage was
also enacted, through provisions in various personal laws, and enforced
through the Prohibition of Child Marriage Act, 2006 (which repealed the
1440 SUPREME COURT REPORTS [2023] 16 S.C.R.

pre-existing Child Marriage Restraint Act, 1929) – this law applies to all
sections of societies.
18. Existing conditions of women, especially in respect of issues
such as maintenance, were considered inadequate even before the
Constitution was brought into force. The earliest reform introduced was
through the Bengal Sati Regulation, 18291 (by the colonial rulers). This
was later followed by the Hindu Widow Remarriage Act, 1856 which
enabled re-marriage of Hindu widows. These enactments pre-date the
Constitution, and can be seen as reforms, meant to outlaw abhorrent
practices viewed as evil, and needing prohibition, to protect women’s
lives; in the case of widow remarriage, it was to enable child and young
widows an opportunity to lead lives. Given the diversity of Hindu
traditions and the diﬀering approaches in various schools of law, which
prevailed in diﬀerent parts of the country, it was considered necessary
to enact the Hindu Women’s Right to Property Act, 19372 (later with
the enactment of the Hindu Succession Act, 1956, some rights were
expanded through its provisions3). For a long time, daughters were treated
unequally in regard to succession to the estate of their deceased father;
this changed with the enactment of the Hindu Succession Amendment
Act, 2005, and the substitution of Section 6, daughters (who were hitherto
excluded from succession to any coparcenary properties) became entitled

1 Regulation XVII, A. D. 1829 of the Bengal Code
2 With the introduction of the Hindu Women’s Right to Property Act, 1937, the widow
of the deceased husband now had a right to her husband’s property after his death.
Unlike previously, where the property was divided among the surviving coparceners
by the doctrine of survivorship, now it was the widow who had the sole right to such
property. However, she only had limited rights (popularly called “limited estate”) over
such property, which remained with her till her death.
3 After the coming of the Hindu Succession Act, 1956, any property held
by a Hindu female, whether before or after the commencement of that Act
and which does not fall under the exception of 14(2), is held by her in an
unrestricted and absolute manner. The word “possessed” as incorporated in
section 14 was further held by various judgements of this court to include
any kind of remote possession, be it constructive, physical, or even a right
to possess. The result of the incorporation of this section led to a situation
whereby all the limited rights given to a female Hindu under the 1937 Act
became absolute by virtue of section 14(1) of the Hindu Succession Act.
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to claim the share that a son was entitled to, in the case of death of a
coparcener in relation to ancestral property.
19. The right to maintenance (pendente lite, as well as alimony) was
given statutory force under the Hindu Marriage Act 1955 as well as the
Hindu Maintenance and Guardianship Act 1956, for Hindus. All married
women and children of their marriage, regardless of their religious or social
backgrounds, were enabled to claim maintenance, by virtue of Section 488
of the Criminal Procedure Code, 1898. This provision was re-enacted,
and progressively amended through section 125 of the Code of Criminal
Procedure, 1973. This court, in its ﬁve-judge decision in Mohd. Ahmad
Khan v. Shah Bano Begum (hereafter, “Shah Bano”) 4 upheld the right of
Muslim women, including divorced Muslim women to claim maintenance.
However, soon after that decision, Parliament enacted the Muslim Women
(Protection of Rights on Divorce) Act, 1986, which diluted the ruling in
Shah Bano (supra) and restricted the right of Muslim divorcées to alimony
from their former husbands for only 90 days after the divorce (the period
of iddat in Islamic law). The restriction imposed was however interpreted
narrowly, and this court through a Constitution Bench, in Danial Latiﬁ v.
Union of India5 held that “nowhere has Parliament provided that reasonable
and fair provision and maintenance is limited only for the iddat period and
not beyond it. It would extend to the whole life of the divorced wife unless
she gets married for a second time”.
20. The Age of Consent Act in 1891, raised the age of marriage from
10 to 12 years. The Child Marriage Restraint Act of 1929 addressed this by
prescribing the minimum age of marriage for females to 14 years and for
boys to 18 years. The Child Marriage Restraint Act of 1929 (also known as
the Sarda Act), was enacted as a result of prolonged pressure from social
reform organisations and concerned people who fought against the negative
repercussions of child marriage. The age limitations were later raised to
18 and 21 years old, under the Prohibition of Child Marriage Act, 2006.
The practise of marrying oﬀ children young, which prevailed before these
enactments, was thus, interdicted by legislation.

4 1985 (3) SCR 844
5 2001 Suppl. (3) SCR 419
1442 SUPREME COURT REPORTS [2023] 16 S.C.R.

21. Similarly, even while exercising personal choice in marriage,
these choices are regulated by law – prohibition of marriage of persons
related by blood (consanguineous marriages)6. Other restrictions such as the
requirement to be of “sound mind” to give valid consent or not to be “unﬁt
for marriage and the procreation of children”.7 If a spouse is “incurably
of unsound mind” or on the ground of unsoundness, the other spouse can
secure divorce8. Bigamy among Hindus was abolished by enactment of the
HMA, in 1955. Reform has been the underlying theme, impelling the state
to intervene. The legislative trajectory, and indeed some of the debates that
preceded enactment of measures like monogamy and divorce, showed a
division of opinion. The ﬁrst President, Rajendra Prasad, expressed strong
sentiments against adopting such “foreign” concepts which were opposed
to Hindu society. There were other voices, most prominently, women in
public life, who supported the need to empower women.
22. It can thus, be seen that two kinds of legislations have regulated
marriage: the ﬁrst, like SMA, HMA, the Hindu Disabilities Removal Act, and
the Hindu Widows Remarriage Act, removed barriers, and enabled exercise
of meaningful choice, speciﬁcally to women. The second kind of legislation
are those which enacted restrictive regulations, essentially to further an
orderly society and/or protect women: prohibit bigamy; deﬁne minimum
age for marriage; child marriage restraint; marriage of individuals within
prohibited degrees of relationships, etc. Whereas some restrictions, in a sense

6 Deﬁned as “prohibited degrees” under Section 3 (g) of the Hindu Marriage Act, 1955
- which is not conﬁned to a bar against marriages related by blood, but also through
non-biological ties, such as widow of brother, son’s widow; mother in law, etc; Section
3 (1) (a) of the Parsi Marriage and Divorce Act, 1936; Section 19, Indian Divorce Act,
1869; Section 88, Indian Christian Marriages Act, 1872. Among Muslims, the concept
of consanguinity is known as qurabat, i.e. blood relationships such as marrying one’s
relatives like mother, grandmother, sister, aunt, niece, etc. Other grounds (aﬃnity or
mushaarat) are also prohibited relationships, i.e. marriage with mother in law, daughter
in law, step grandmother; step granddaughter, fosterage when a child under the age
of two years has been fed by a woman other than his mother, or when the woman
becomes his foster mother, a man cannot marry his foster mother or her daughter, i.e.
foster sister.
7 Section 5 (i) (ii) (iii), HMA [Hindu Marriage Act, 1955]
8 Section 13 HMA; Section 32 (b) and (bb) Parsi Marriage Act, 1936; Section 10 (1) (iii)
Indian Divorce Act, 1869; under Section 2 (v) of the Dissolution of Muslim Marriages
Act, 1939
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codiﬁed and recognized existing customs – such as by enacting prohibited
degrees of relationships, rule against insanity, rules enabling declaration
of nullity or divorce on ground of impotence, etc., - others were meant to
further interests of women and children and also enable exercise of choice.
23. Such reforming and codiﬁcation, however, did not cover the entire
ﬁeld. For instance, in the ﬁeld of succession and inheritance, the Hindu
Succession Act, 1956 only enacts certain broad features, leaving untouched
the rights of various communities and sections of Hindus, to work out
their rights in succession to joint family, Hindu Undivided Family and
coparcenary property- and this unwritten, uncodiﬁed law, (in many cases
based on customs and local traditions) is enforced not only in regard to
inheritance, but also in the ﬁeld of taxation. Likewise, the law accommodates
and accords primacy to custom [e.g., Section 2 (d) which states that persons
other than Hindus- including Jews, Muslims and Christians who may be
following Hindu customs, would continue to do so9; Section 7 which spells
out the ceremonies of Hindu marriage, also states that they shall be based
on “customary rites and ceremonies of either party thereto”; and similarly,
customary divorce amongst Hindus is accorded primacy, by Section 29
(2)10]. Neither the Hindu Marriage Act, nor the Hindu Succession Act, apply
to members of the Scheduled Tribe communities; the Hindu Adoptions
and Maintenance Act, applies to them in a nuanced manner.11 The Hindu

9 Section 2 which says that the Act does not apply to “(c) to any other person domiciled
in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew
by religion, unless it is proved that any such person would not have been governed by
the Hindu law or by any custom or usage as part of that law in respect of any of the
matters dealt with herein if this Act had not been passed.”
10 “29… (2) Nothing contained in this Act shall be deemed to aﬀect any right recognised
by custom or conferred by any special enactment to obtain the dissolution of a Hindu
marriage, whether solemnized before or after the commencement of this Act.”
11 Section 2 (2), Hindu Marriage Act, and Hindu Succession Act, are identically worded,
and state that:
“(2) Notwithstanding anything contained in sub-section (1), nothing contained in this
Act shall apply to the members of any Scheduled tribe within the meaning of clause
(25) of article 366 of the Constitution unless the Central Government, by notiﬁcation
in the Oﬃcial Gazette, otherwise directs.”
The Hindu Adoptions and Maintenance Act, 1956 is worded diﬀerently, and covers,
inter alia,
“(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists,
Jainas or Sikhs by religion (b) any child, legitimate or illegitimate, one of whose
1444 SUPREME COURT REPORTS [2023] 16 S.C.R.

Minority and Guardianship Act, 1956, on the other hand, has a provision
similar to the one under the Hindu Minority and Maintenance Act as well
as one which excludes members of the scheduled tribe communities 12. In
the latest three judge bench decision of this court, in Revanasiddappa v.
Mallikarjuna13, this court clariﬁed that with the enactment of Section 16 of
the HMA, the legitimacy conferred upon children born of void or voidable
marriages would be that they are “entitled only to a share in their parent’s
property but cannot claim it of their own right as a consequence of which
they cannot seek partition during the life-time of their parents”. The court
also held that they cannot claim any rights other than what was expressly
provided for. Thus, uncodiﬁed law and custom was upheld.
24. Legislative action initiated at diﬀerent points in time thus were
reformatory or meant to eﬀectuate certain fundamental rights. Practices
and customs which had resulted in the degradation or diminution of
individuals, seen as inconsistent and abhorrent to democratic society, were
sought to be eliminated by these laws. When codiﬁcation attempts resulted
in residual discrimination, the courts stepped in to eliminate and enforce
the fundamental rights [Independent Thought v. Union of India & Anr.,
(hereafter, “Independent Thought”)14; Shayara Bano v. Union of India &
Anr.15, etc.].
25. The only legislations which come to one’s mind which in fact
created social status or facilitated the status of individuals in private ﬁelds
are the Special Marriage Act, 1954, the Protection of Women from Domestic
Violence Act, 2005 (“DV Act”), and Section 41 of the Juvenile Justice (Care
and Protection of Children) Act (which enables adoption amongst members
of all faiths and communities). The latter, i.e., the provision enabling

parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a
member of the tribe, community, group or family to which such parent belongs or
belonged;”
12 Section 3 (2) states that “(2) Notwithstanding anything contained in sub-section
(1) nothing contained in this Act shall apply to the members of any scheduled Tribe
within the meaning of clause (25) of article 366 of the Constitution unless the Central
Government, by notiﬁcation in the Oﬃcial Gazette, otherwise directs.”
13 2023 INSC 783; ; 2023 SCC OnLine SC 1087
14 2017 (13) SCR 821
15 2017 (9) SCR 797
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adoption was preceded by certain guidelines which facilitated inter-country
adoptions. These guidelines, initially pioneered in the judgment of this court
in Laxmi Kant Pandey v. UOI16 - were accepted. Executive instructions ﬁlled
in the vacuum to some extent assimilating the guidelines of the court but
at the same time the limitation in law that prevented adoption of children
from diﬀerent faiths and backgrounds, persisted. These limitations were
ﬁnally overridden through the enactment of the Juvenile Justice Act, 2016.
The Protection of Women from Domestic Violence Act, 2005 which was for
the purpose of more eﬀective protection of the rights of women guaranteed
under the Constitution who are victims of violence of any kind occurring
within the family. For the ﬁrst time, a legal status was given to unmarried
couples, which enabled women, subjected to domestic violence, to the
right to residence (quite apart from remedies through its provisions). The
culture of the Constitution, thus, has impelled the removal of barriers which
hitherto existed. Traditional barriers – such as those based on social practice,
and stereotypes such as gender roles, have, through express constitutional
provisions like Articles 14, 15 and 16 which shaped legislation (and where
this fell short, through judicial intervention), been overcome and in some
cases eliminated.
26. The role of the legislature has been to act as codiﬁer, and in many
instances, not enact or codify existing customs or practices, and, wherever
necessary, intervene, and in furtherance of Article 14 and 15(3) enact
laws. Parliament, has intervened and facilitated creation of social status
(marriage) through SMA, and enabled the creation of the institution of
adoption, which was available amongst only certain communities. These,
and other legislative interventions, are a result of state interest in reforms or
furthering the interests of given communities or persons. For these reasons,
we do not particularly subscribe to the characterisation of ‘democratizing
intimate zones’ as discussed in the learned chief justice’s draft opinion.
These outcomes were driven by enacted law; furthermore, there was state
interest, which impelled regulation of such relationships, as for instance,
in ensuring that the minimum age for marriage of girls. Likewise, there
is state interest in regulating what kind of relationships, i.e. prohibited

16 [1985] Supp. (3) SCR 71
1446 SUPREME COURT REPORTS [2023] 16 S.C.R.

degrees of relationship, should be enacted as disqualiﬁcations to marriage.
Marital “oﬀences” such as desertion, or “cruelty” [not conﬁned to physical
violence or cruelty] are also grounds aﬀorded to spouses, to seek matrimonial
remedies. The absence of such legislation would have meant that children
of any age, would continue to have been married oﬀ, much to the peril of
the girl child’s health and life; likewise, the codiﬁcation and enactment of
prohibited degrees of relationships, were meant to further certain public
health interests.
III. Tracing the rights enjoyed by queer persons
A. The trinity - autonomous choice, dignity and non-discrimination
i. Importance of personal choice under the Constitution
27. The journey of our constitutional progression, and our understanding
of the personal liberties, especially right to life (Article 21) and equality
(Article 14) has peeled and laid bare, so to say, multiple layers of prejudice,
insensitivity and indiﬀerence of the social order or other collectives, in
regard to a person’s freedom to exercise her volition, and free will, in
several matters. For instance, a woman’s choice and bodily autonomy in
regard to exercise of her reproductive rights has been acknowledged as a
fundamental right–- integral to the right to life, in Suchita Srivastava &
Ors. v. Chandigarh Administration17 reiterated in Devika Biswas v. Union
of India18; X v. Principal Secretary, Health and Family Welfare Department
(hereafter, “X v. Principal Secretary”)19; Independent Thought (supra) and
other decisions.
28. A person’s autonomy to choose a spouse or life partner, has been
declared as integral to one’s fundamental right to live: in Asha Ranjan v. State
of Bihar20, this choice of a “partner in life” was held to be “a legitimate
constitutional right” that is “founded on individual choice” and the court
decried the concept of “class honour” or “group thinking” which acted
as barriers from the exercise of free choice. Similarly, In re [Gang-Rape

17 2009 (13) SCR 989. This court held that “a woman’s right to make reproductive
choices” is “a dimension of ‘personal liberty’ as understood under Article 21”.
18 2016 (5) SCR 773
19 2022 (7) SCR 686
20 2017 (1) SCR 945
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Ordered by Village Kangaroo Court in W.B.,21 echoed the same idea and
said that the state is “duty-bound” to protect the fundamental rights “and
an inherent aspect of Article 21 of the Constitution would be the freedom
of choice in marriage.” Shaﬁn Jahan v. Asokan K.M & Ors., (hereafter,
“Shaﬁn Jahan”)22, brought home that expressing choice is in “accord with
the law” and is “acceptance of individual identity.” 23
29. The nine-judge decision in K.S. Puttaswamy v. Union of India
(hereafter, “K.S. Puttaswamy”)24 through Dr. Chandrachud J writing for
himself and ﬁve other judges, in several places, explored the various nuances
of the right to privacy, and observed that “personal choices governing a
way of life are intrinsic to privacy”.
30. The choice of a woman to seek employment, was upheld in Anuj
Garg v. Hotel Association of India25 where gender and age barriers were
held unconstitutional; the choice of an individual patient has been held to
exercising his (or her) legal right to euthanasia (or to his relations in certain
circumstances, particularly when the patient is unconscious or incapacitated
to take a decision), in Common Cause (A Regd. Society) v. Union of India
(UOI) & Ors (hereafter, “Common Cause”)26. Traditional barriers to temple
entry based on gender was the subject matter of this court’s ruling in Indian
Young Lawyers Association & Ors. v. the State of Kerala & Ors. 27).
ii. Dignity as a dimension of equality and all our liberties
31. The promise of the Preamble to the Constitution is of ‘fraternity’
“assuring power, conﬂicts, and oppression, denial of participation. Quite
naturally, these occupied centre-stage in our struggle for Swaraj. We did not
strive merely for freedom from the shackles of a foreign power; our founders
realized that millennia old practices of marginalization, oppression and

21 (2014) 4 SCC 786
22 2018 (4) SCR 955
23 Choice was also the central theme, in Gian Devi v. Superintendent, Nari Niketan
(1976) 3 SCC 234, Soni Gerry v. Gerry Douglas (2018) 2 SCC 197 and Nanda Kumar
v. State of Kerala (2018) 16 SCC 602
24 2017 (10) SCR 569
25 2007 (12) SCR 991
26 2018 (6) SCR 1
27 2018 (9) SCR 561
1448 SUPREME COURT REPORTS [2023] 16 S.C.R.

exclusion produced humiliation, resulting in dehumanization of the human
“self”. The relation of self to other self, the dominant or powerful self to the
oppressed self, ventures on the concept of equality. It thus tries to eliminate
untouchability, sex and caste-based discrimination, and ensure dignity.
32. Dignity is understood to mean the intrinsic worth of a person
or the inherent value of a human being which entitles one to respect. The
crucial aspect of substantive dignity lies in the state’s role in providing basic
conditions of life which enable individuals to fully realise the potential of
intrinsic dignity by living, what is called, a ‘digniﬁed life’.
33. In the Indian context the idea of equality and dignity is to reach its
constitutional commitment to be a republic, based on democracy. In Francis
Coralie Mullin v. Administrator, Union Territory of Delhi28, this court said
that the “right to life includes the right to live with human dignity”. Prem
Shankar Shukla v. Delhi Admn29 voiced the same idea, i.e. that the Preamble
set the “humane tone and temper of the Founding Document and highlights
justice, equality and the dignity of the individual.” The court went on to hold
that Article 21 “is the sanctuary of human values, prescribes fair procedure
and forbids barbarities, punitive or procedural”.
34. This court, in Jeeja Ghosh v. Union of India30, spoke about human
dignity as a “core value” and that the “right to life is given a purposeful
meaning by this Court to include right to live with dignity”. The court quoted
from Aharon Barak31 that human dignity has a “central normative role” and
that as a constitutional value it is “the factor that unites the human rights
into one whole. It ensures the normative unity of human rights” expressed
in diﬀerent ways i.e., normatively as a basis for constitutional rights; an
interpretive principle for determining the scope of constitutional rights and
that dignity has “an important role in determining the proportionality of
a statute limiting a constitutional right.” In Kesavananda Bharati v. State
of Kerala (hereafter, “Kesavananda Bharti”)32 too the value of dignity

28 1981 (2) SCR 516
29 1980 (3) SCR 855
30 2016 (4) SCR 638
31 Aharon Barak “Human Dignity - The Constitutional Value and the Constitutional
Right” Cambridge University Press (2015)
32 1973 Supp SCR 1
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was underlined: “the basic dignity of man does not depend upon the
codiﬁcation of the fundamental rights nor is such codiﬁcation a prerequisite
for a digniﬁed way of living”. This view has been adopted in several other
decisions. It would be to borrow the words of Justice K.K. Mathew “an
idle parade of familiar learning to review the multitudinous cases”33
underpinning this aspect.
35. This court in K.S. Puttaswamy (supra) too, recognized the value of
dignity34. The judgment of this court in National Legal Services Authority v.
Union of India & Ors., (hereafter, “NALSA”) 35 is signiﬁcant; it underlines
how dignity can be said to form the basis of enjoyment of fundamental
freedoms.
36. The constitutional emphasis on dignity is not without a reason.
Ambedkar, and several of our constitution framers, meticulously sought to
carve out of the remnants of a socially repressive, hierarchical, and unequal
society a modern constitution, reﬂecting the aspirations of a conﬁdent people,
in a vibrant democracy. The society which our constitution created was to
emerge out of darkness of caste and other forms of social prejudice and
oppression, into the light of the rule of law, social justice, and egalitarianism.
To Ambedkar and other constitution makers, political freedom (swaraj)
meant precisely the freedom to make the self, to make choices with dignity,
to break from historical suﬀering and humiliation. The drafting history of
the equality code (Articles 14, 15, 16, 17 and 18) bear poignant testimony
to this aspect.
37. Dignity has both an internal and external aspect. In its internal
context, dignity and privacy are intrinsically twined. In its external context,
dignity is multidimensional: it is a right to be treated as a fellow human,
with all attributes of a human personality, which is, the right and expectation

33 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760
34 This formulation was followed in X v. The Principal Secretary (supra). In Navtej Johar
(supra), Dipak Misra, J, said that “[t]his is the essence of dignity and we say, without
any inhibition, that it is our constitutional duty to allow the individual to behave and
conduct himself/herself as he/she desires and allow him/her to express himself/herself,
of course, with the consent of the other. That is the right to choose without fear. It has
to be ingrained as a necessary prerequisite that consent is the real fulcrum of any
sexual relationship.”.
35 (2014) 5 SCR 119
1450 SUPREME COURT REPORTS [2023] 16 S.C.R.

to be accorded due respect, treated with dignity and equal worth. Denial of
these, has a disproportionate impact on the individual: they are diminished
in their own eyes, and the rest of the world, resulting in a loss of one’s self
worth and moral worth. This is the vision of equality, social justice, welfare
and dignity which our Constitution articulates.
iii. Equality, non-discrimination and non-exclusion
38. The equality code - Articles 14, 15, 16, and 17 (and Articles 23
and 24), so referred to in various previous decisions of this Court - for
instance as the constitution’s “identity” in M. Nagaraj v. Union of India
(hereafter, “M. Nagaraj”)36 is not a “wooden” equality before law and
equal protection of law. It contains speciﬁc injunctions prohibiting the
state from discriminating on speciﬁcally forbidden grounds [such as caste,
race, sex, place of birth, religion, or any of them, in Article 15; and caste,
sex, religion, place of residence, descent, place of birth, or any of them,
in Article 16]. The rooting of such explicit issues - commanding the state
against discriminating on such speciﬁc heads, is therefore, as much a part
of the equality code, as the principle of equality indorsed in Article 14. The
inclusion of Article 17 enjoins the state to forbear caste discrimination,
overtly, or through classiﬁcation, and looms large as a part of the equality
code and indeed the entire framework of the Constitution. The protected
attribute of ‘sex’ has been held to include ‘sexual orientation’ and ‘gender
expression’ by this court in NALSA (supra) and Navtej Johar & Ors. v.
Union of India (hereafter, “Navtej Johar”)37.
39. The rationale for enacting proscribed grounds under Article 15
or 16 (or both) is the awareness of Constitution makers that courts could
use these markers- or pointers of distinction, to determine if reasonable
classiﬁcation were permissible. Hence, absent the prohibited ground of
sex, gender could have been a plausible basis for an intelligible diﬀerentia.
To prevent such classiﬁcations speciﬁc proscribed grounds were enacted
as injunctions against State action. The provisions, and the equality code,
are consequently not only about the declaratory sweep of equality: but also
about the total prohibition against exclusion from participation in speciﬁed,

36 2006 Supp (7) SCR 336
37 (2018) 7 SCR 379
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enumerated activities, through entrenched provisions. A closer look at Article
15, especially Article 15(2), would further show that likewise most of the
proscribed grounds in Article 15(1) were engrafted to ensure that access
to public resources - in some cases not even maintained by the state, but
available to the public generally, could not be barred. This provision was
made to right a historical wrong, i.e., denial of access to the most deprived
sections of society of the most basic resources, such as water, food, etc.
The aim of the Constitution was to act as the ultimate leveller, ensuring
that equality in practice, and substance, became the constitutional culture of
this great nation. Together with the aﬃrmative action provisions - Articles
15(3) & (4), 16(4) & 16(5) was intended to guarantee that not mere facial
discrimination was forbidden but that existing inequalities were ultimately
eradicated. Flowing from these, this court has, time and again, emphasized
that non-discrimination is essential for enjoyment of all rights and freedoms
of citizens of our country, to realize their worth and potential.38
40. In the context of the present debate, in NALSA (supra), this court
took note of the Yogyakarta Principles and principle on right to equality
and non-discrimination enshrined therein which reads as:
“2. The rights to equality and non-discrimination - Everyone is
entitled to enjoy all human rights without discrimination on the basis
of sexual orientation or gender identity. Everyone is entitled to equality
before the law and the equal protection of the law without any such
discrimination whether or not the enjoyment of another human right
is also aﬀected. The law shall prohibit any such discrimination and
guarantee to all persons equal and eﬀective protection against any
such discrimination.”
In this backdrop, the declaration of law, in Navtej Johar (supra) has
provided impetus, so far as LGBTQ+ persons are concerned. Consensual
queer relationships are not criminalized; their right to live their lives, and
exercise choice of sexual partners has been recognised. They are no longer

38 The principle of non-discrimination was explained in Rajive Raturi v. Union of India
& Ors 2017 [12] SCR 827 as existing to “ensure that all persons can equally enjoy
and exercise all their rights and freedoms. Discrimination occurs due to arbitrary
denial of opportunities for equal participation”.
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to be treated as “sub-par humans” by law. Yet, that ipso facto, the petitioners
allege, is not suﬃcient, because the fact that they are allowed to be by
themselves, “let alone” in the privacy of where they live, is not adequate.
Discrimination and prejudice faced by the queer community has been
acknowledged, and discussed at length by this court in NALSA (supra) and
Navtej Johar (supra). The draft opinion of the Chief Justice, also highlights
these aspects, so is only brieﬂy touched upon in the following section, for
the sake of completeness.
B. Rights ﬂowing from previous decisions of this court relating to the
queer community
41. The Constitution assures dignity; also, various fundamental rights
guarantee a panoply of rights (to equality, non-discrimination on enumerated
grounds, to freedom of speech, expression, of association, of right to travel
freely, of right to reside, of the right to trade, commerce and business, to
personal liberty, freedom to profess one’s religion, all being important ones).
Various rights not expressly stated or enumerated, have been declared as
facets of the right to life - of livelihood, access to healthcare, right to shelter,
right to a clean environment, etc.
42. Sexual relation between persons of the same sex was outlawed, by
virtue of Section 377 of the IPC. It characterized such acts as “unnatural sex”,
enacted an oﬀence, and prescribed sentence. This provision was read down
by a Division Bench ruling of the Delhi High Court in Naz Foundation v.
State (NCT of Delhi) (hereafter, “Naz Foundation”)39, which de-criminalized
consensual sex between persons of the same sex. However, Naz Foundation
(supra) was over turned, and its holding disapproved by this Court in Suresh
Kumar Kushal v. Naz Foundation40 that became the ﬁnal word for a time so
to say, resulting in the criminalization of physical intimacy between same sex
consenting adults. Implicit in this was the chilling eﬀect on the exercise of
other freedoms by such couples particularly in exhibiting even bare, decent
expressions of aﬀection – which was a position that prevailed till the later
ﬁve-judge bench decision in Navtej Johar (supra).

39 (2009) 111 DRJ 1 (DB)
40 (2014) 1 SCC 1: (2013) 17 SCR 1019
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43. NALSA (supra) was a signiﬁcant ruling regarding the rights of
transgender persons. It was held that “discrimination on the ground of
sexual orientation or gender identity, therefore, impairs equality before
law and equal protection of law and violates Article 14 of the Constitution
of India”.41 This court, for the ﬁrst time, recognized what now is obvious
but was not perceived to be till then, i.e., that the transgender persons have
the same rights and have to be treated as full citizens, entitled to their self-
expression of gender identity. In other words, every human being’s right to
assert what their gender is, not limited by what has been ascribed to them
based on their sex at the time of birth. The court unequivocally declared that
the right of transgender persons to non-discrimination is equally contained
and resonates in the same manner as it does with other citizens. The court also
acknowledged the right to self-determination of one’s gender as intrinsic to
Article 21 of the Constitution. The court further declared that necessarily, to
realize such persons’ fundamental right to live with dignity under Article 21,
extends to the right of equal access to all facilities to achieve full potential
as human beings, such as education, social assimilation, access to public
spaces and employment opportunities. The court also expressly alluded to
their rights under Articles 15 and 16 of the Constitution of India. The court
was cognizant of the acutest form of discrimination of such persons, resulting
in their degradation. This declaration of the entitlement of the transgender
persons sensitized the society to take measures for addressing their concerns,
eventually paving the way for the enactment of the Transgender Persons
(Protection of Rights) Act, 2019 which aims to entrench the principle of
non-discrimination and entitles transgender persons to a range of statutory
rights, which they can enforce.
44. The court’s intervention in the oft cited decisions on behalf of the
petitioners has been to protect the citizens or those approaching the courts
against threats of violence or creation of barriers in the exercise of free choice
[Shakti Vahini v. Union of India (hereafter, “Shakti Vahini”)42, Lata Singh
v. State of U.P (hereafter, “Lata Singh”), Shaﬁn Jahan (supra), Laxmibai
Chandaragi. v. State of Karnataka43 respectively]. These decisions were

41 Ibid.
42 2018 (3) SCR 770
43 2021 (3) SCC 360
1454 SUPREME COURT REPORTS [2023] 16 S.C.R.

based on the state’s duty to protect citizens and enable the exercise of their
individual choice, in the face of external threats. Other decisions, such as
Joseph Shine v. Union of India44, Navtej Johar (supra) and Independent
Thought (supra) were instances where speciﬁc provisions that criminalized
or made exceptions to criminal behaviour, were struck down or read down
in the enforcement of the fundamental rights, i.e. Articles 14, 15(3) and 21.
Along the way, K.S. Puttuswamy (supra) articulated the broadest right to
privacy which embraces within its fold the right to exercise ones choice of
a life partner and to lead their life free from external barriers.
C. Is there a fundamental right to marry?
45. This court has recognized that marriage is a social institution.45
As elaborated in Part I, marriage existed and exists, historically and
chronologically in all of the senses - because people married before the
rise of the state as a concept. Therefore, marriage as an institution is prior
to the state, i.e., it precedes it. The status is still, not one that is conferred
by the state (unlike the license regime in the US). This implies that the
marriage structure exists, regardless of the state, which the latter can utilise
or accommodate, but cannot be abolished as a concept. Under this view terms
of marriage are set, to a large extent, independently of the state. Its source
is external to the state. That source deﬁnes the boundaries of marriage. This
implies that state power to regulate marriage does not sit easy with the idea
of marriage as a fundamental right. In attempting to analyse the claim to a
fundamental right to marry, there are primarily two competing claims about

44 2018 (11) SCR 765
45 Sivasankaran v. Santhimeenal [2021] 6 SCR 169:“The norms of a marriage
and the varying degrees of legitimacy it may acquire are dictated by factors
such as marriage and divorce laws, prevailing social norms, and religious
dictates. Functionally, marriages are seen as a site for the propagation of
social and cultural capital as they help in identifying kinship ties, regulating
sexual behaviour, and consolidating property and social prestige.” Likewise,
in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCR 1019] this court said that “The
institutions of marriage and the family are important social institutions.” The
same decision also recognized the centrality of tradition, and custom, while
emphasizing that “Marriages in India take place either following the personal
Law of the Religion to which a party is belonged or following the provisions of
the Special Marriage Act.”
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the nature of marriage: one being that the state should exercise more control
over marriage to support and protect “traditional purposes and perceptions”
and the other, that each individual should have the right to deﬁne marriage
for themselves and state involvement in marriage should be minimal.
46. If indeed there is a right to marry unless it is elevated to a right
akin to Articles 17, 23, and 24, [which apply to both state and nonstate
agencies and actors], it cannot be operationalized. These provisions, most
emphatically create positive obligations; likewise Articles 15 (3), 15 (4) – and
15 (6), as well as Articles 16 (4), 16 (6) highlight state interest in creating
conditions to further the goal of non-discrimination. Yet, the previous
decisions of this court have carefully held such provisions to enable the
state, and in a sense oblige it to take measures; but ruled out court mandated
policies and laws.46 In our considered opinion, this is not however, one such
case where the court can make a departure from such rule, and require the
state to create social or legal status.
47. What is being asked for by the petitioners is state intervention
in enabling marriage between queer or non-heterosexual couples. Civil
marriage or recognition of any such relationship, with such status, cannot
exist in the absence of statute. The demand, hence, is that of a right of access
to a publicly created and administered institution. There is a paradox here or
a contradiction, which runs to the root of the issue and weighs on this court’s
mind, heavily - in that the creation of the institution, here depends on state
action, which is sought to be compelled through the agency of this court.
48. Most of the precedents cited contain discussions on how the
institution of marriage involves issues of basic importance. Many decisions,
including Obergefell v. Hodges (hereafter, “Obergefell”)47, recall tradition,
to underline that marriage is of utmost signiﬁcance, and that it underlines
the importance of commitment of two individuals towards each other and
that it is a foundational relationship of society. Traditions of marriage per
se may not support the basis of recognition of marital relationship between
non-heterosexual couples. Many decisions by the US courts, have underlined
the rationale for declaring the right to marry a fundamental right as being

46 Andhra Pradesh Public Service Commission v. Baloji Badhvanath 2009 (5) SCR 668
47 576 US 644 (2015)
1456 SUPREME COURT REPORTS [2023] 16 S.C.R.

essential to the orderly pursuit of Happiness (as it appears in their Declaration
of Independence) by free persons. This strand of reasoning is apparent from
Loving48 to Obergefell (supra).
49. This with respect is not sound - at least as applied to state
licensing of marriage (as in the US), which is what civil marriage is.
The fundamental importance of marriage remains that it is based on
personal preference and confers social status. 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.
Some may consider education to be fundamentally important in that
they consider nothing less than a postgraduate degree is fundamental;
there may be a large section of the people, who consider that access
to internet is a fundamental right, and yet others, who may wish that
access to essential medication is a fundamental right. All these cannot be
enforceable rights, which the courts can compel the state or governance
institutions to provide. These cannot result in demand for creation of a
social institution, and in turn creation of status, through a statute. This
result - i.e. recognition, can be achieved only by enacted law.
50. All decisions relied on by the petitioners – K.S. Puttaswamy
(supra), Navtej Johar (supra), Shakti Vahini (supra) and Deepika Singh
v. Central Administrative Tribunal 49, contain broad observations with
respect to individuals’ choice of their partner as also a reference as to non-
conventional relationships. Some broad observations are undoubtedly
to be found in these judgments they cannot be referenced to hold that
a right to marry automatically ﬂows in the manner from the provisions
of Part III which the petitioner asserts. There cannot, for the above
reasons, be a per se assertion that there exists an unqualiﬁed right to
marry which requires treatment as a fundamental freedom; we agree on
this conclusion arrived at by the learned Chief Justice, and his analysis
of Shakti Vahini (supra), Shaﬁn Jahan (supra), Navtej Johar (supra),
K.S. Puttaswamy (supra), and NALSA (supra) that the constitution does
not expressly recognize a right to marry.

48 Loving v. Virginia, 388 US 1 (1967)
49 2022 (7) SCR 557
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D. Right to ‘union’, or abiding relationship
51. The conclusion arrived at by the learned Chief Justice is that while
there is no express fundamental right to marry, there is a right or freedom
to enter into a union [spelt out in Navtej Johar (supra), K.S. Puttaswamy
(supra), NALSA (supra), Shakti Vahini (supra), Shaﬁn Jahan (supra), etc.]
and that having regard to our constitutional values, which entail respect to
the choice of a person whether or when to enter into marriage and the right
to choose a marital partner. The learned Chief Justice also traces this right
to enter into an abiding cohabitational relationship to express provisions of
Article 19(1)(a), (c), and (e), Article 21, and Article 25.
52. While we agree, that there is a right - which we will characterise
as a ‘right to relationship’ to avoid confusion – we squarely recognise it to
fall within Article 2150, as already recognised in the afore-cited cases. The
right to relationship here, includes the right to choose a partner, cohabit and
enjoy physical intimacy with them, to live the way they wish to, and other
rights that ﬂow from the right to privacy, autonomy and dignity. They are,
like all citizens, entitled to live freely, and express this choice, undisturbed
in society. Whenever their right to enjoyment of such relationship is under
threat of violence, the state is bound to extend necessary protection. This
is a natural consequence of this court’s judgments in Navtej Johar (supra),
K.S. Puttuswamy (supra), Shaﬁn Jahan (supra) and Shakti Vahini (supra).
53. The learned Chief Justice in a detailed discussion of the ‘goal of
self-development’, rights under Article 19 (including the right to freedom of

50 See Navtej Johar (supra). Some of the opinions, notably of Chief Justice Dipak Misra
(with whom Justice Khanwilkar concurred) highlighted the need to protect choice of
one’s partner, in case of non-heterosexual persons. Citing previous decisions of this
court, including Shakti Vahini (supra)and Shaﬁn Jahan (supra), Justice Dipak Mishra
(Chief Justice, as he then was), concluded that:
“167. The above authorities capture the essence of the right to privacy. There can
be no doubt that an individual also has a right to a union under Article 21 of the
Constitution. When we say union, we do not mean the union of marriage, though
marriage is a union. As a concept, union also means companionship in every sense of
the word, be it physical, mental, sexual or emotional. The LGBT community is seeking
realisation of its basic right to companionship, so long as such a companionship is
consensual, free from the vice of deceit, force, coercion and does not result in violation
of the fundamental rights of others.” (emphasis supplied)
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speech and expression, and to form ‘intimate’ associations, to settle in any
part of India), Article 21, and Article 25, arrives at the conclusion that the
right to union (or right to enter into an abiding cohabitational relationship)
can be traced to these express provisions, which in turn enrich this right.
Thereafter, having traced this right to union, it is propounded that the
‘positive’ postulate of fundamental rights (as explained in an earlier section
of the draft opinion), necessitates or places a positive obligation on the State
to accord recognition to such relationships/unions. This, in our considered
opinion, is not necessary. Further, our point of disagreement is deepened
by the discussion in Part D(v) and (vi) in the learned Chief Justice’s draft
opinion, prior to the section on ‘the right to enter into a union’- which lays
down a theory on the ‘positive postulates’ of fundamental rights and the
consequential obligation on the State. For the reasoning elaborated in Part
IV of our opinion, we cannot agree to this characterisation of the entitlement,
or any corresponding state obligation to create a status through statute.
54. If it is agreed that marriage is a social institution with which the
State is unconcerned except the limited state interest in regulating some
aspects of it, does it follow that any section of the society (leaving aside the
issue of rights of non-heterosexual couples) – which wishes for creation of
a like social institution, or even an entry into a zone which is not popular or
otherwise does not fall within the institution of marriage – can seek relief
of its creation by court intervention?
IV. Positive obligations in furtherance of fundamental rights
55. The conception of fundamental rights – in terms of their negative,
and positive content – is a formulation that requires no citation. However,
the extent to which this positive obligation may reach to, is where our
reasoning arrives at the metaphorical fork in the road. Every fundamental
right, is not enjoyed by an individual, to the same degree of absoluteness
– for instance: Article 19 has a clear stipulation of reasonable restrictions
for each freedom; Article 15 and 16 have a clear negative injunction on the
State against discrimination, within which substantive equality is baked in
and requiring the State to step in or facilitate; Article 25, is subject to other
fundamental rights and freedoms under Part III, etc. There are restrictions,
to the content of these rights. A discussion of Article 21 elucidates this point.
However, even while tracing these numerous ‘unenumerated’ rights – the
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right to a clean environment, right to shelter, etc. – the courts have been
(necessarily so) circumspect in how these can be enforced. Often, these
rights have come to be enumerated in response to State action that threatened
the freedom, or right directly or indirectly, thus compelling the litigant to
invoke the jurisdiction of this court, to remind the State of the negative
injunction that impedes its interference, and must guides its actions. Does
this, however, mean that a litigant could knock on the doors of this court,
seeking to enforce each of these unenumerated rights? A simple example
would oﬀer some clarity – consider a poet who wishes to share their work,
with the public at large. Now provided that there is no direct restriction, or
those in the nature of having a chilling eﬀect, the State’s role in enabling or
facilitating this freedom enjoyed by the poet, is limited. This court cannot
direct that the State must create a platform for this purpose; this would be
a stretch, in the absence of any overt or inert threat.
56. In the draft circulated by the Chief Justice, the reasoning that there
is no fundamental right to marry and thereafter, nevertheless, to proceed
to delineate the facets or features which unions other than marriage, are
deprived of; merits a closer look. The summation of various rights which
such a couple is said to be deprived of, is used to delineate the contours of
the right to enter into a union, and justify a positive obligation. There cannot
be any doubt that the individuals have the choice of their life partners and
the right to live the lives they wish to, undisturbed. This is the essence of
what the jurisprudence of this Court has been so far, i.e., an explanation of
the right to life and the other rights enumerated or discovered by interpretive
process – privacy, choice, dignity etc.
57. Repeatedly, decisions of this court have emphasized on the non-
discriminatory and positive content of certain fundamental rights (Articles
14, 15, 16, 17, 23 and 24). In fact, the court has underlined the obligations
of the state to create conditions conducive to the exercise of the right to
equality (i.e., substantive equality), and to realize fraternity [Refer: decisions
in N.M. Thomas51 and Indra Sawhney52 which expanded the understanding of
substantive equality, though without making enabling provisions enforceable

51 State of Kerela v. N.M Thomas, (1976) 2 SCC 310
52 Indra Sawhney v. Union of India, (1992) Supp (3) SCC 217
1460 SUPREME COURT REPORTS [2023] 16 S.C.R.

by court]. This court has also in some decisions, accepted the argument that
given the nature of fundamental rights, and its evolving content, in many
circumstances, it might be necessary for the state to intervene and protect
the fundamental right concerned thus creating an atmosphere conducive for
the enjoyment of such right. Lata Singh (supra) dealt with honour killings
of couples involved in inter-caste, inter-religious marriages; in Arumugam
Servai v. State of Tamil Nadu53, where the issue was virulent caste slurs and
violence, which were crimes, the court required administrative and police
oﬃcials “to take strong measures to prevent such atrocious acts”. In Shakti
Vahini (supra), which dealt with threats by khap panchayats, this court
held that the state “is duty-bound to protect the fundamental rights of its
citizens; and an inherent aspect of Article 21 of the Constitution would be
the freedom of choice in marriage”. The court issued directions requiring
the state to take punitive and remedial measures, and that the state has a
positive obligation to protect the life and liberty of persons.
58. In several decisions it has been recognised that the reason for
entrenching Part III Rights - as for instance, in M. Nagaraj (supra) was to
“withdraw certain subjects from the area of political controversy to place
them beyond the reach of majorities and oﬃcials and to establish them
as legal principles to be applied by the courts….. Fundamental right is a
limitation on the power of the State”. Rustom Cavasjee Cooper v. Union of
India (hereafter, “R.C. Cooper”)54 is salient, for the observations it made
about the common thread that runs through Part III rights, which again, sets
out distinct enforceable rights:
“it is necessary to bear in mind the enunciation of the guarantee of
fundamental rights which has taken diﬀerent forms. In some cases it is
an express declaration of a guaranteed right: Articles 29(1), 30(1), 26,
25 & 32; in others to ensure protection of individual rights they take
speciﬁc forms of restrictions on State action--legislative or executive-
-Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes
the form of a positive declaration and simultaneously enunciates the
restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it

53 2011 (5) SCR 488
54 1970 (3) SCR 530
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arises as an implication from the delimitation of the authority of the
State, e.g., Articles 31(1) and 31(2); in still others, it takes the form of
a general prohibition against the State as well as others: Articles 17,
23 & 24. The enunciation of rights either express or by implication
does not follow a uniform pattern. But one thread runs through them:
they seek to protect the rights of the individual or groups of individuals
against infringement of those rights within speciﬁc limits. Part III of
the Constitution weaves a pattern of guarantees on the texture of basic
human rights. The guarantees delimit the protection of those rights in
their allotted ﬁelds: they do not attempt to enunciate distinct rights.”
59. The right to freedom of speech, is distinct, because it - unlike
others in Article 19, is preceded by the word “freedom” of speech and
expression whereas the others are rights. Whilst this judgment does not
call for elaboration on this distinction, yet the common element, in respect
of all the rights spelt out in Article 19 is the assertion of the right, which is
a curb or restraint, on state action, whose limits can only be through laws,
made by the state, to promote some state concern, such as sovereignty and
integrity of the state, etc. reasonably restricting speech in the interests of
inter alia, “public order, decency or morality”. The same pattern is followed
in relation to freedom to associate by Article 19(4). In relation to the right
under Article 19(1)(g) a broader state interest, inter alia, i.e., “in the interests
of the general public”. These expressions are common grounds on which
reasonable restrictions can be enacted, validly by law. Kharak Singh v. State
of UP55, Bijoe Emmanuel v. State of Kerala56, and Union of India (UOI) v.
Naveen Jindal & Ors.57 are all authorities for the proposition that regulating
the exercise of rights guaranteed under Article 19(1)(a) to (e) and (g) -
through reasonable restrictions, can be only through a law.
60. The judgment of the learned Chief Justice, propounded a theory
of a uniﬁed thread of rights, entitlements ﬂowing from it, and how lack
of recognition, results in deprivation of speciﬁed rights under Articles 19
and 25 (in addition to Article 21). To the extent, that assertion of sexual

55 1964 (1) SCR 332
56 1986 (3) SCR 518
57 2004 (1) SCR 1038
1462 SUPREME COURT REPORTS [2023] 16 S.C.R.

or gender identity, in exercise of free speech, association, through express
manifestations in whatever form (whether through speech, art, participation
in processions, etc.), are concerned, one cannot join issue. Equally, if one
has by some state process, measure or conduct been barred from expressing
one’s choice, publicly, the reasonableness of that prohibition or order, can be
tested on grounds enumerated in Article 19(2), if such barriers are through
a valid law, or orders, traceable to law.
61. However, when the law is silent, and leaves the parties to express
choice, Article 19(1)(a) does not oblige the state to enact a law, or frame a
regulation, which enables the facilitation of that expression. All judgments,
from Sakal Papers58, to Bennet Coleman59 and Express Newspapers60, etc.
were based on the eﬀect of laws or policies, based on statutory provisions.
Equally, in the absence of a legal framework enabling citizens to form
a particular kind of association (as for instance recognition of a limited
liability partnership, which was not recognized any legal status till recently)61
the court could not have validly created a regime enabling recognition or
regulating such associations. Similarly, in the absence of any enacted law
which obliges meaningful facilitation of transport such as roads, it is hard
to visualize that a citizen can approach the Court and seek the construction
of a road to enforce the right to travel [Article 19(1)(d)], or seek court’s
intervention to create a network of roads or other modes of transportation.
Likewise in the absence of a basic housing scheme again the court if
approached for enforcement of Article 19(1)(e), would not call upon the
State to create one either by framing a general legislative policy or through
law. Furthermore, this Court has also recognized that, there can even be
reasonable restrictions, in the acquisition and enjoyment of certain types of
properties in many States. Given the nature of rights under Articles 19 and
21 the enjoyment of which are limited to the extent reasonable laws within
the bounds of the speciﬁed provisions, enact in the legitimate jurisdiction
of this court, it would be diﬃcult to translate the positive obligations (or
postulates) as articulated in the learned chief justice’s opinion.

58 Sakal Papers (P) Ltd v. Union of India 1962 (3) SCR 842
59 Bennet Coleman v. Union of India 1973 (2) SCR 757
60 Express Newspapers (P) Ltd. V. Union of India, (1959) 1 SCR 12
61 The Limited Liability Partnership Act, 2008
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1463
UNION OF INDIA [S. RAVINDRA BHAT, J.]

62. History or traditions may not be the only methods to trace
constitutional values which can arguably be the result of an evolving
society. Yet the court cannot stray too far from the express provisions and
the manner in which they are cast. In the case of free speech and expression,
right to association and the other rights spelt out in Article 19 and the rights
spelt out in Article 25, the core content of these are hard fought freedoms
and rights primarily directed against state action and its tendency to curb
them. To the question whether it is possible to locate an entitlement to lead
to positive obligation and to facilitate the exercise of free speech, generally
by mandating a horizontally applicable parliamentary law or legal regime,
the answer would be a self-evident negative.
63. There is no diﬃculty about the right of two consenting persons to
decide to live together, to co-habit with each other, and create their unique
idea of a home, unconstrained by what others may say. That is the natural
sequitur to K.S. Puttaswamy (supra) and Navtej Johar (supra). Conduct
hitherto criminalised, is now permissible. The liberative eﬀect of Section
377 being read down is that two individuals, regardless of their sexual
orientation are enabled to live together, with dignity, and also protected
from any kind of violence, for living and existing together. Therefore, the
right to be left alone, the right to exercise choice, the right to dignity, and to
live one’s life, with the person of one’s choice, is an intrinsic and essential
feature of Article 21 of the Constitution.
64. The idea that one right can lead to other rights, emanating from it,
has been conclusively rejected by this court by seven judges, in All India
Bank Employees Association v. National Industrial Tribunal62. That decision
was quoted with approval in Maneka Gandhi v. Union of India (UOI) &
Ors. , (hereafter, “Maneka Gandhi”)63:
“This theory has been ﬁrmly rejected in the All India Bank Employees
Association’s case and we cannot countenance any attempt to revive
it, as that would completely upset the scheme of Article 19(1) and to
quote the words of Rajagopala Ayyanger, J., speaking on behalf of the
Court in All India Bank Employees Association’s case “by a series of

62 1962 (3) SCR 269
63 1978 (2) SCR 621
1464 SUPREME COURT REPORTS [2023] 16 S.C.R.

ever expending concentric circles in the shape of rights concomitant
to concomitant rights and so on, lead to an almost grostesque result”.
So also, for the same reasons, the right to go abroad cannot be treated
as part of the right to carry on trade, business, profession or calling
guaranteed under Article 19(1)(g). The right to go abroad is clearly
not a guaranteed right under any clause of Article 19(1)”
65. As the two 7-judge bench decisions have aﬃrmed whilst there
is no dispute that there is an interconnectedness of various fundamental
rights, their manifestations in diﬀerent forms especially under Article 19
and the distinct grounds on which they can be circumscribed, sets each
freedom and right apart. While the right to free speech and expression
may be exercised in conjunction with the right to association and even
the right to assemble and move, nevertheless the extent of the assertion of
these rights, collectively, would depend on the circumstances of the case
and the nature of the curbs imposed (by law). Thus, for instance, the right
to protest in the form of a procession is subjected to the laws reasonably
restricting movement in the larger interests of the public. It is questionable
whether the imposition of valid restrictions and curbs in such circumstances
can be successfully impugned only on the ground that their right to free
speech and assembly are violated. In the case of both, if the restriction
is valid for one fundamental right, it is equally valid for the others on an
application of the test laid down in Maneka Gandhi (supra). Rather it is
the test of reasonableness and the proximity to the disturbance of public
order, when such restriction is imposed, that becomes the focal point of
debate. Therefore, in the abstract every right enumerated in Article 19, and
other Article 25, can be exercised freely without hindrance by all. However,
it is the assertion of the right, in the face of some threat by state action
or despite state protection, which becomes the subject of court scrutiny.
The extent of right to free speech is subject to reasonable restrictions, to
further inter alia, “public order” or “decency” and “morality”. The right
to association is hedged by reasonable restrictions inter alia, in furtherance
of “public order or morality”. The right to travel and settle in any part
of the country, is subject to reasonable restrictions in the “interests of the
general public” or “for the interests of any scheduled tribe”. Likewise,
the freedom of conscience is both internal, and external. As long as an
individual exercises it, from within, and in privacy, there can be ordinarily
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1465
UNION OF INDIA [S. RAVINDRA BHAT, J.]

no inroads into it; its external manifestation, may call for scrutiny, at given
points in time.
66. The right to freedom of conscience is also subject to other
provisions of Part III, and any measure, in the interests of public order
or morality. It is thus, open to all to exhibit and propagate their beliefs
and ideas through overt “for the ediﬁcation of others”, regardless if the
propagation is made by a person in his individual capacity or on behalf of
any church or institution….exhibition of such “belief, is, as stated above,
subject to State regulation imposed to secure order, public health and
morals…”64 This broad understanding and enunciation of the freedom of
conscience has remained unchanged. The state on occasions has intervened
to promote social welfare and reforms; this court has intervened when
state action was based on a practise found inconsistent with the right to
equality and dignity.
67. We do not therefore, agree with the learned Chief Justice who
has underlined that the positive postulate of various rights, leads to the
conclusion that all persons (including two consenting adult queer persons)
have an entitlement to enter into a union, or an abiding cohabitational
relationship which the state is under an obligation to recognize, “to give real
meaning” to the right. There is no recorded instance nor was one pointed
out where the court was asked to facilitate the creation of a social institution
like in the present case.
68. There are observations from the judgment of the (then Justice
Chandrachud and) now Chief Justice) Justice D.Y. Chandrachud, in Navtej
Johar (supra), of how social institutions must be arranged:
“Social institutions must be arranged in such a manner that individuals
have the freedom to enter into relationships untrammelled by binary
of sex and gender and receive the requisite institutional recognition to
perfect their relationships. The law provides the legitimacy for social
institutions. In a democratic framework governed by the Rule of law,
the law must be consistent with the constitutional values of liberty,
dignity and autonomy.”

64 Ratilal Panachand Gandhi v. State of Bombay 1954 (1) SCR 1055
1466 SUPREME COURT REPORTS [2023] 16 S.C.R.

These observations underscored the need to respect and give worth
to the choice of queer couples. The observations were in the context of
criminalization of consensual sexual conduct between queer couples. The
observations, however, have tended to point to the direction that there should
be some social ordering of institutions, which not merely accommodate such
choice, but facilitate its meaningful exercise beyond the conﬁnes of their
right to privacy and to live together. While the decision’s decriminalising
impact is undoubted, and not contested, yet the broader observations obliging
social institutions to accommodate and facilitate exercise of choice fully
were not necessary. In one sense, they travelled beyond the scope of the
court’s remit and have to be viewed as obiter dicta. That the State should or
ought to order such social institutions, is diﬀerent from a direction issued by
this court, which they must carry out; the latter is what we take exception
to, and place our reservations against.
69. Therefore, even if we were to, for argument sake, recognise an
entitlement under the Constitution to enter into an abiding cohabitational
relationship or union– in our opinion, it cannot follow to a claim for an
institution. There are almost intractable diﬃculties in creating, through
judicial diktat, a civil right to marry or a civil union, no less, of the kind
that is sought by the petitioners in these proceedings. “Ordering a social
institution” or re-arranging existing social structures, by creating an entirely
new kind of parallel framework for non-heterosexual couples, would require
conception of an entirely diﬀerent code, and a new universe of rights and
obligations. This would entail fashioning a regime of state registration,
of marriage between non-heterosexual couples; the conditions for a valid
matrimonial relationship amongst them, spelling out eligibility conditions,
such as minimum age, relationships which fall within “prohibited degrees”;
grounds for divorce, right to maintenance, alimony, etc.
70. As a result, with due respect, we are unable to agree with the
conclusions of the learned Chief Justice, with respect to tracing the right to
enter into or form unions from the right to freedom of speech and expression
[Article 19(1)(a)], the right to form associations [Article 19 (1)(c)], along
with Article 21 and any corresponding positive obligation. It is reiterated
that all queer persons have the right to relationship and choice of partner,
co-habit and live together, as an integral part of choice, which is linked
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1467
UNION OF INDIA [S. RAVINDRA BHAT, J.]

to their privacy and dignity. Any further discussion on the rights which
consenting partners may exercise, is unnecessary. No one has contested that
two queer partners have the rights enumerated under Article 19 (1)(a); (c),
and (d), or even the right to conscience under Article 25. The elaboration
of these rights, to say that exercise of choice to such relationships renders
these rights meaningful, and that the state is obliged to “recognise a bouquet
of entitlements which ﬂow from such an abiding relationship of this kind”
is not called for. We therefore, respectfully disagree with that part of the
learned Chief Justice’s reasoning, which forms the basis for some of the
ﬁnal conclusions and directions recorded in his draft judgment.
V. Inapplicability of the Special Marriage Act
A. Challenge to the SMA on the ground of impermissible classiﬁcation
71. The petitioners complained that provisions of the SMA, inasmuch
as they excluded, or do not provide for marriage of non-heterosexual couples,
is discriminatory, because the classiﬁcation made in its various provisions
are heteronormative, thus discriminating against non-heterosexual couples.
This exclusion, is the basis of their challenge.
72. Hostile classiﬁcation, which results in exclusion from beneﬁts of
a statute or policy, is based on the understanding that where “equals are
treated diﬀerently, without any reasonable basis” as held in D.S. Nakara
v. Union of India65:
“The classiﬁcation must be founded on an intelligible diﬀerentia which
distinguishes persons or things that are grouped together from those
that are left out of the group and that diﬀerentia must have a rational
nexus to the object sought to be achieved by the statute in question.
There ought to be causal connection between the basis of classiﬁcation
and the object of the statute. An executive action could be sustained
only if the twin tests of reasonable classiﬁcation and the rational
principle co-related to the object sought to be achieved are satisﬁed.”
73. What is an “intelligible diﬀerentia” on which the classiﬁcation
is to be drawn distinguishing objects or persons, or conditions, for the

65 1983 (2) SCR 165
1468 SUPREME COURT REPORTS [2023] 16 S.C.R.

purpose of legislative or executive policy? The premise of classiﬁcation
is to discriminate. The theory of permissible classiﬁcation rests, therefore,
on the basis for diﬀerentiation, and its relation to the object of the measure
or the law. Permissible classiﬁcation, therefore, should result in valid
diﬀerentiation; but it crosses the line when it has a discriminatory eﬀect,
of excluding persons, objects or things which otherwise form part of the
included group. Kedar Nath Bajoria v. State of West Bengal66 explained that
Article 14 cannot mean that
“all laws must be general in character and universal in application
and that the State is no longer to have the power of distinguishing and
classifying persons or things for the purposes of legislation. To put
it simply, all that is required in class or special legislation is that the
legislative classiﬁcation must not be arbitrary but should be based
on an intelligible principle having a reasonable relation to the object
which the legislature seeks to attain.”
74. After a fairly detailed examination of previous precedents, recently,
in Chandan Banerjee v. Krishna Prasad Ghosh67, this court explained the
principles applicable to determine whether classiﬁcation by any law or
policy can be upheld:
“27. The principles which emerge from the above line of precedents
can be summarised as follows:
(i) Classification between persons must not produce artificial
inequalities. The classiﬁcation must be founded on a reasonable
basis and must bear nexus to the object and purpose sought to be
achieved to pass the muster of Articles 14 and 16;
(ii) Judicial review in matters of classification is limited to a
determination of whether the classiﬁcation is reasonable and
bears a nexus to the object sought to be achieved. Courts cannot
indulge in a mathematical evaluation of the basis of classiﬁcation
or replace the wisdom of the legislature or its delegate with their
own; [..]”

66 [1954] 1 SCR 30
67 [2021] 11 SCR 720
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1469
UNION OF INDIA [S. RAVINDRA BHAT, J.]

This court, in Transport & Dock Workers Union v. Mumbai Port Trust68
explained how diﬀerential treatment may not always result in discrimination
and “it violates Article 14 only when there is no conceivable reasonable
basis for the diﬀerentiation.”
75. The diﬀerentiation or classiﬁcation has to be based on the object
or end sought to be achieved: a facet highlighted in Union of India v.
M.V. Valliappan69, where the court held that if there is a diﬀerentiation,
having rational nexus with the “object sought to be achieved by particular
provision, then such diﬀerentiation is not discriminatory and does not
violate the principles of Article 14 of the Constitution”. In fact, earlier,
this court in State of J&K v. Triloki Nath Khosa70 ruled that “the object
to be achieved” ought not to be “a mere pretence for an indiscriminate
imposition of inequalities and the classification” should not be
“characterized as arbitrary or absurd”.
76. The discussion on equality and the limits of permissive
classiﬁcation were conveniently summarized by the seven-judge bench in
In Re the Special Courts Bill, 1978 (hereafter, “Re Special Court’s Bill”) 71.
Some of the propositions were stated as follows:
“[..] (2).The State, in the exercise of its governmental power, has of
necessity to make laws operating diﬀerently on diﬀerent groups or
classes of persons within its territory to attain particular ends in giving
eﬀect to its policies, and it must possess for that purpose large powers
of distinguishing and classifying persons or things to be subjected to
such laws.
(3). The constitutional command to the State to aﬀord equal protection
of its laws sets a goal not attainable by the invention and
application of a precise formula. Therefore, classiﬁcation need
not be constituted by an exact or scientiﬁc exclusion or inclusion
of persons or things. The courts should not insist on delusive
exactness or apply doctrinaire tests for determining the validity

68 (2010) 14 SCR 873
69 1999 (3) SCR 1146
70 1974 (1) SCR 771
71 (1979) 2 SCR 476
1470 SUPREME COURT REPORTS [2023] 16 S.C.R.

of classiﬁcation in any given case. Classiﬁcation is justiﬁed if it
is not palpably arbitrary.
(4). The principle underlying the guarantee of Article 14 is not that
the same rules of law should be applicable to all persons within
the Indian territory or that the same remedies should be made
available to them irrespective of diﬀerences of circumstances.
It only means that all persons similarly circumstanced shall be
treated alike both in privileges conferred and liabilities imposed.
Equal laws would have to be applied to all in the same situation,
and there should be no discrimination between one person and
another if as regards the subject-matter of the legislation their
position is substantially the same.
***
(6) The law can make and set apart the classes according to the needs
and exigencies of the society and as suggested by experience. It
can recognise even degree of evil, but the classiﬁcation should
never be arbitrary, artiﬁcial or evasive.
(7) The classiﬁcation must not be arbitrary but must be rational,
that is to say, it must not only be based on some qualities or
characteristics which are to be found in all the persons grouped
together and not in others who are left out but those qualities or
characteristics must have a reasonable relation to the object of
the legislation. In order to pass the test, two conditions must be
fulﬁlled, namely, (1) that the classiﬁcation must be founded on an
intelligible diﬀerentia which distinguishes those that are grouped
together from others and (2) that that diﬀerentia must have a
rational relation to the object sought to be achieved by the Act.
(8) The diﬀerentia which is the basis of the classiﬁcation and the
object of the Act are distinct things and what is necessary is that
there must be a nexus between them. In short, while Article 14
forbids class discrimination by conferring privileges or imposing
liabilities upon person arbitrarily selected out of a large number of
other persons similarly situated in relation to the privileges sought
to be conferred or the liabilities proposed to be imposed, it does
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1471
UNION OF INDIA [S. RAVINDRA BHAT, J.]

not forbid classiﬁcation for the purpose of legislation, provided
such classiﬁcation is not arbitrary in the sense abovementioned.
***
(11) Classiﬁcation necessarily implies the making of a distinction
or discrimination between persons classiﬁed and those who are
not members of that class. It is the essence of a classiﬁcation
that upon the class are cast duties and burdens diﬀerent from
those resting upon the general public. Indeed, the very idea of
classiﬁcation is that of inequality, so that it goes without saying
that the mere fact of inequality in no manner determines the matter
of constitutionality.”
The diﬀerentiation, therefore, is to be discerned from gathering of the
object sought to be achieved by the enactment.
77. For a moment, if it is assumed (as the petitioners argue) that
the classiﬁcation is suspect, because non-heterosexual couples are not
provided the facility of marriage, yet such “under classiﬁcation” is not
per se discriminatory. This aspect was highlighted by this court in Ambica
Mills72:
“Since the classiﬁcation does not include all who are similarly situated
with respect to the purpose of the law, the classiﬁcation might appear,
at ﬁrst blush, to be unreasonable. But the Court has recognised the
very real diﬃculties under which legislatures operate — diﬃculties
arising out of both the nature of the legislative process and of the
society which legislation attempts perennially to re-shape — and it
has refused to strike down indiscriminately all legislation embodying
classiﬁcatory inequality here under consideration”
78. In an earlier decision, this court upheld the tax imposed upon joint
families, in Kerala, based on Marumakkattayam law. The law imposed
expenditure tax upon those professing the Marumakkattayam unit and
deﬁned it in such a manner that it omitted to include Mapillas (non-Hindus)
who also followed that system. This court held that such under inclusion did

72 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760
1472 SUPREME COURT REPORTS [2023] 16 S.C.R.

not attract the vice of discrimination, in N. Venugopala Ravi Varma Rajah
v. Union of India73 and observed:
“the mere fact that the law could have been extended to another class
of persons who have certain characteristics similar to a section of
the Hindus but have not been so included is not a ground for striking
down the law.”
79. The question of some categories being left out, when a new
legislation is introduced, was the subject matter of the decision in Ajoy
Kumar Banerjee & Ors. v. Union of India & Ors.74 where it was held that:
“[…] Article 14 does not prevent legislature from introducing a
reform i.e. by applying the legislation to some institutions or objects
or areas only according to the exigency of the situation and further
classiﬁcation of selection can be sustained on historical reasons or
reasons of administrative exigency or piecemeal method of introducing
reforms. The law need not apply to all the persons in the sense of
having a universal application to all persons. A law can be sustained
if it deals equally with the people of well-deﬁned class-employees of
insurance companies as such and such a law is not open to the charge
of denial of equal protection on the ground that it had no application
to other persons.”
These judgments have underlined that exclusion or under inclusion, per
se, cannot be characterised as discriminatory, unless the excluded category
of persons, things or matters, which are the subject matter of the law (or
policy) belong to the same class (the included class).
80. The statement of objects and reasons of the SMA read as follows:
“Statement of Objects and Reasons:
1. This Bill revises and seeks to replace the Special Marriage Act
of 1872 so as to provide a special form of marriage which can be
taken advantage of by any person in India and all Indian nationals
in foreign countries irrespective of the faith which either party to

73 969 (3) SCR 827
74 1984 (3) SCR 252
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1473
UNION OF INDIA [S. RAVINDRA BHAT, J.]

the marriage may profess. The parties may observe any ceremonies
for the solemnisation of their marriage, but certain formalities are
prescribed before the marriage can be registered by the marriage
oﬃcers. For the beneﬁt of Indian citizens abroad, the Bill provides
for the appointment of Diplomatic and Consular Oﬃcers as Marriage
Oﬃcers for solemnising and registering marriages between citizens
of India in a foreign country.
Provision is also sought to be made for permitting persons who are
already married under other forms of marriage to register their
marriages under this Act and thereby avail themselves of these
provisions. The Bill is drafted generally on the lines of the existing
Special Marriage Act of 1872 and the notes on clauses attached thereto
explain some of the changes made in the Bill in greater detail.”
81. The Statement of Objects and Reasons of SMA clearly suggests
that the sole reason for the enactment of the Act was to replace the earlier
colonial era law and provide for certain new provisions; it does not refer to
any speciﬁc object sought to be achieved or the reasons that necessitated the
enactment of the new Act other than that it was meant to facilitate marriage
between persons professing diﬀerent faiths.
82. If one looks at the enacted provisions, especially Sections 19-21
and 21A, Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt
that the sole intention was to enable marriage (as it was understood then,
i.e., for heterosexual couples) of persons professing or belonging to diﬀerent
faiths, an option hitherto available, subject to various limitations. There was
no idea to exclude non-heterosexual couples, because at that time, even
consensual physical intimacy of such persons, was outlawed by Section
377 IPC. So, while the Act sought to provide an avenue for those marriages
that did not enjoy support in society, or did not have the beneﬁt of custom
to solemnise, it would be quite a stretch to say that this included same sex
marriages. Therefore, the challenge to the constitutionality of the statute,
must fail. It is settled by decisions of the court that as long as an objective
is clearly discernible, it cannot be attacked merely because it does not make
a better classiﬁcation. The need for a law or a legal regime that provides or
facilitates matrimony of queer couples is similar, to the need to facilitate
inter-faith marriages which is what drove the Parliament to enact the SMA.
1474 SUPREME COURT REPORTS [2023] 16 S.C.R.

83. The next question urged is that the passage of time, has rendered
the exclusion of queer couples, the beneﬁt of SMA, discriminatory. This
line of argument, is based on this court’s reasoning that with passage of
time, a classiﬁcation which was once valid, could become irrelevant, and
insupportable, thus discriminatory. The ﬁrst of such decisions was Motor and
General Traders v. State of AP75 wherein a provision of the state rent control
legislation (which exempted premises constructed after 26.08.195776) was
under challenge. The idea was to provide impetus to construction of houses;
however, the long passage of time resulted in two classes of tenants, i.e.,
those residing in older premises, who were covered by the law, and those
who lived in premises constructed later. This court held that the continued
operation of such exemption, rendered it unconstitutional:
“There being no justiﬁcation for the continuance of the beneﬁt to a
class of persons without any rational basis whatsoever, the evil eﬀects
ﬂowing from the impugned exemption have caused more harm to the
society than one could anticipate. What was justiﬁable during a short
period has turned out to be a case of hostile discrimination by lapse of
nearly a quarter of century. The second answer to the above contention
is that mere lapse of time does not lend constitutionality to a provision
which is otherwise bad.”
84. Almost identically, in Rattan Arya v. State of T.N.77 the validity of
Section 30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act,
1960 was under challenge, this court held that the provision which exempted
tenants of “residential buildings” paying monthly rent of more than Rs 400
from the protection of the said Rent Control Act, whereas no such restriction
was imposed in respect of tenants of “non-residential buildings” under the
said Act. This court upheld the challenge, and held that
“a provision which was perfectly valid at the commencement of the
Act could be challenged later on the ground of unconstitutionality and
struck down on that basis. What was once a perfectly valid legislation,

75 1984 (1) SCR 594.
76 Section 32, clause (b) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control
Act, 1954
77 1986 (2) SCR 596
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. 1475
UNION OF INDIA [S. RAVINDRA BHAT, J.]

may in course of time, become discriminatory and liable to challenge
on the ground of its being violative of Article 14.”
The judgment cited by the petitioners, that is Satyawati Sharma v.
Union of India78 too dealt with rent legislation which diﬀerentiated between
non-residential and residential buildings, in respect of the remedy of eviction,
on ground of bona ﬁde requirement.
85. In all the judgments cited by petitioners, the court was able
to discern or ﬁnd that a classiﬁcation, made at an earlier point in time,
had lost its relevance, and operated in a discriminatory manner. In some
circumstances, rather than declaring the entire law void, this court “read
down” the relevant provision to the extent the statute could be so read. In
the present case, the petitioner’s arguments with respect to “reading down”
provisions of the SMA are insubstantial. The original rationale for SMA
was to facilitate inter-faith marriages. That reason is as valid today as it was
at the time of birthing that law. It cannot be condemned on the ground of
irrelevance, due to passage of time. It would be useful to recall principle
(9)79 of the opinion in Re Special Court’s Bill (supra). The classiﬁcation
was primarily not between heterosexual and non-heterosexual couples, but
heterosexual couples of diﬀering faiths. All its provisions are geared to and
provide for a framework to govern the solemnisation, or registration, of
the marital relationship, which replicates the status that diﬀerent personal
laws bestow. Since there was no one law, which could apply for couples
professing diﬀering religions, the SMA created the governing norms- such
as procedure, minimum age, prohibited degree of relationship and forbidden
relationships for the male and female spouses respectively (through diﬀerent
schedules); the grounds of divorce, etc. The relevance of SMA has gained
more ground, because of increasing awareness and increasing exercise of
choice by intending spouses belonging to diﬀerent faiths. It cannot be said, by
any stretch of the imagination that the exclusion of non-heterosexual couples
from the fold of SMA has resulted in its ceasing to have any rationale, and

78 2008 (6) SCR 566
79 “(9) If the legislative policy is clear and deﬁnite and as an eﬀective method of carrying
out that policy a discretion is vested by the statute upon a body of administrators or
oﬃcers to make selective application of the law to certain classes or groups of persons,
the statute itself cannot be condemned as a piece of discriminatory legislation.”
1476 SUPREME COURT REPORTS [2023] 16 S.C.R.

thus becoming discriminatory in operation. Without a ﬁnding of that kind,
it would not be open to the court to invoke the doctrine of “reading down”.
86. We, therefore, agree with the reasoning elaborated by the Chief
Justice, Dr. Chandrachud, J that the challenge to the SMA fails.
B.Interpretation of provisions of SMA
87. The provisions of SMA are incapable of being “reading down”, or
interpreted by “reading up” in the manner suggested by the petitioners. We
have supplemented the Chief Justice’s conclusions, with further reasoning
brieﬂy below.
88. The petitioners’ eﬀorts have been aimed at persuading this court
to interpret the provisions of SMA in a manner, that accommodates non-
heterosexual couples and facilitates this marriage. Their arguments were
centred around reading its speciﬁc provisions – [Section 2 (b) read with Part
I (for a male) and Part II (for a female) (degrees of prohibited relationships),
Section 4 (c), Section 12, 15, 22, 23, 27(1); 27(1A) (special ground of divorce
for wife), 31(1)(iiia) and (2) (special provision for jurisdiction in case of
proceeding for the wife), 36 and 37 (alimony for the wife), 44 (bigamy)] –
which present a dominant underlying heteronormative content. They argue
that this court should adopt a purposive construction of the provisions of
SMA, and interpret it in light of this court’s previous decisions in Dharani
Sugars and Chemicals Ltd v. Union of India (hereafter, “Dharani Sugars”)80
and X v. Principal Secretary (supra).
89. In Dharani Sugars, the challenge was against a new policy
introduced by the Reserve Bank of India (RBI). The petitioners contented
that there was no authorization under the RBI Act to frame the impugned
policy. Although the court acknowledged that new facts can inﬂuence the
interpretation of existing law, it ultimately upheld the policy based on
existing provisions that empowered the RBI to issue such policies. A careful
examination of this judgment would reveal that even though discussion on
the interpretation that “unless a contrary intention appears, an interpretation
should be given to the words used to take in new facts and situations, if

80 [2019] 6 SCR 307
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the words are capable of comprehending them” indeed occurred81; but, the
court also noticed that “this doctrine does not however mean that one can
construe the language of an old statute to mean something conceptually
diﬀerent from what the contemporary evidence shows that Parliament must
have intended”82.
90. This court, in X v. Principal Secretary (supra) while reading
down the exclusion of unmarried women from the beneﬁt of the Medial
Termination of Pregnancy Act, 1971 (MTP Act), also relied on Dharani
Sugars (supra) to invoke the principle that a statute “always speaks”.
Noting that the Act, and more so its amendment, was to enable women to
terminate unwanted pregnancies, the reasons for which could be manifold,
the court held that such exclusion was arbitrary and discriminatory.
Further, the court relied on Badshah v. Sou. Urmila Badshah Godse83
which held that “change in law precedes societal change and is even
intended to stimulate it” and that “just as change in social reality is
the law of life, responsiveness to change in social reality is the life of
the law”. Similarly, in All Kerala Online Lottery Dealers Association v.
State of Kerala & Ors.,84 this court referred to decision of court in State
v. SJ Choudhary85 wherein it was observed that “in its application on
any date, the language of the Act, though necessarily embedded in its
own time, is nevertheless to be construed in accordance with the need
to treat it as current law.”86

81 This court indeed cited a number of decisions of the House of Lords, or the UK Court
of Appeals: Royal College of Nursing of the United Kingdom v. Department of Health
and Social Security, 1981 (1) All ER 545 [HL]; Comdel Commodities Ltd. v. Siporex
Trade S.A., 1990 (2) All ER 552 [HL]; McCartan Turkington Breen (A Firm) v. Times
Newspapers Ltd., [2000] 4 All ER 913; R v Ireland, R v Burstow 1997 (4) All ER 225;
Birmingham City Council v. Oakley [2001] 1 All ER 385 [HL].
82 In this context, the court took note of Goodes v East Sussex County Council
(2000 [3] All ER 603) and Southwark London Borough Council v. Mills (1999
[4] All ER 449).
83 [2013] 10 SCR 259
84 [2015] 10 SCR 880
85 1996 (2) SCC 428
86 The court had cited State (Through CBI/New Delhi) v. S.J. Choudhary (1996) 2
SCC 428; SIL Import, USA v. Exim Aides Silk Exporter [1999] 2 SCR 958 and BR
Enterprises v. State of U.P. [1999] 2 SCR 1111
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91. Furthermore, the petitioners relied on the interpretation of this
court, in Githa Hariharan v. Union of India87, wherein the court construed
the word ‘after’ in Section 6(a) of the Hindu Minority and Guardianship Act,
1956 as meaning “in the absence of - be it temporary or otherwise or total
apathy of the father towards the child or even inability of the father by reason
of ailment or otherwise” - thus, saving it from the vice of discrimination.
Reliance was also placed on Association of Old Settlers of Sikkim & Ors.
v. Union of India88 where an exemption provision89 discriminated against
Sikkimese women who may have had their names registered in the Register
of Sikkim subjects, married non-Sikkimese on or after 1st April, 2008,
and excluded them from the beneﬁt. This court held such discrimination
to be violative of equality under Article 14 of the Constitution of India.
In Independent Thought (supra), this court invalidated as discriminatory
a provision90 which permitted sex between a man, and a young woman
married to him, above the age of 15 years. The resultant classiﬁcation
was that sex with any woman below 18 years, irrespective of consent was
deﬁned as rape.91

87 [1999] 1 SCR 669
88 (2023) 10 SCR 289
89 [Section 10(26AAA) of the I.T. Act, 1961]
90 [Exception 2 to Section 375, IPC, 1860]
91 The reasoning of the court was that “a girl can legally consent to have
sex only after she attains the age of 18 years. She can legally enter into
marriage only after attaining the age of 18 years. When a girl gets married
below the age of 18 years, the persons who contract such a marriage or
abet in contracting such child marriage, commit a criminal oﬀence and are
liable for punishment under the PCMA. In view of this position there is no
rationale for ﬁxing the age at 15 years. This age has no nexus with the object
sought to be achieved viz., maintaining the sanctity of marriage because
by law such a marriage is not legal. It may be true that this marriage is
voidable and not void ab initio (except in the State of Karnataka) but the
fact remains that if the girl has got married before the age of 18 years,
she has right to get her marriage annulled. Irrespective of the fact that the
right of the girl child to get her marriage annulled, it is indisputable that a
criminal oﬀence has been committed and other than the girl child, all other
persons including her husband, and those persons who were involved in
getting her married are guilty of having committed a criminal act. In my
opinion, when the State on the one hand, has, by legislation, laid down that
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92. The principle of purposive interpretation was relied upon by the
petitioners to urge that a gender neutral interpretation or use of words which
include non-heterosexual couples should be resorted to. This court, in S.R.
Chaudhuri v. State of Punjab & Ors92 remarked that
“The words used may be general in terms but, their full import and
true meaning, has to be appreciated considering the true context in
which the same are used and the purpose which they seek to achieve.”
93. Ahron Barrack93 in his treatise94 stated as follows:
“Purposive interpretation is based on three components: language,
purpose, and discretion. Language shapes the range of semantic
possibilities within which the interpreter acts as a linguist. Once the
interpreter deﬁnes the range, he or she chooses the legal meaning of
the text from among the (express or implied) semantic possibilities. The
semantic component thus sets the limits of interpretation by restricting
the interpreter to a legal meaning that the text can bear in its (public
or private) language.”
94. This court has also held that there can be occasions when words
may be read in a particular manner, if it is sure that the draftsman would
have wished it to be so, given the nature of the expressions, and, at the same
time, indicated the limits for that principle, while quoting from the treatise
Principles of Statutory Interpretation by G.P. Singh95, in Ebix Singapore
Private Limited and Ors. v. Committee of Creditors of Educomp Solutions
Ltd & Ors.96:

abetting child marriage is a criminal oﬀence, it cannot, on the other hand
defend this classiﬁcation of girls below 18 years on the ground of sanctity of
marriage because such classiﬁcation has no nexus with the object sought to
be achieved. Therefore, also Exception 2 in so far as it relates to girls below
18 years is discriminatory and violative of Article 14 of the Constitution.
92 (2001) 7G SCC 126,
93 the former President of the Israeli Supreme Court
94 Aharan Barak-Purposive Interpretation in Law (quoted in Shailesh Dhairyawan v.
Mohan Balkrishna Lulla ([2015] 12 SCR 70)
95 Lexis Nexis, First Edition (2015)
96 [2021] 14 SCR 321
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“A departure from the Rule of literal construction may be legitimate
so as to avoid any part of the statute becoming meaningless. Words
may also be read to give eﬀect to the intention of the Legislature
which is apparent from the Act read as a whole. Application of the
mischief Rule or purposive construction may also enable reading
of words by implication when there is no doubt about the purpose
which the Parliament intended to achieve. But before any words are
read to repair an omission in the Act, it should be possible to state
with certainty that these or similar words would have been inserted
by the draftsman and approved by Parliament had their attention
been drawn to the omission before the Bill passed into law.”
Other decisions too have endorsed this line of reasoning.97
95. The objects of a statute, acquire primacy while interpreting its
provisions, if the need so arises. Therefore, in interpretation of any statute
or provision, this court, long ago, in Workmen of Dimakuchi Estate v.
Management of Dimakuchi Tea Estate98 underlined that where there are
doubts about the meaning of a provision, they “are to be understood in
the sense in which they best harmonise with the subject of the enactment”
and that popular meanings, or strict grammatical import, may yield to

97 In M. Nizamuden v. Chemplast Sanmar Ltd & Ors ((2010) 4 SCC 240), it was observed:
“Purposive construction has often been employed to avoid a lacuna and to suppress
the mischief and advance the remedy. It is again a settled rule that if the language used
is capable of bearing more than one construction and if construction is employed that
results in absurdity or anomaly, such construction has to be rejected and preference
should be given to such a construction that brings it into harmony with its purpose
and avoids absurdity or anomaly as it may always be presumed that while employing
a particular language in the provision absurdity or anomaly was never intended.”
Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors [2015] 15 SCR 543; K.H.
Nazar v. Mathew K. Jacob, (2020) 14 SCC 126, which states that in interpreting a
statute “the problem or mischief that the statute was designed to remedy should ﬁrst
be identiﬁed and then a construction that suppresses the problem and advances the
remedy should be adopted.” Again, in New India Assurance Co. Ltd. v. Nusli Neville
Wadia [2007] 13 SCR 598, this court explained purposive interpretation to mean one
which enables “a superior court to interpret a statute in a reasonable manner, the
court must place itself in the chair of a reasonable legislator/author. So done, the rules
of purposive construction have to be resorted to which would require the construction
of the Act in such a manner so as to see that the object of the Act is fulﬁlled”.
98 1958 SCR 1156
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“the subject or the occasion on which they are used, and the object to
be attained”. This object-based interpretation was adopted in several
decisions.99
96. This court emphasised in Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. & Ors. 100 that:
“Interpretation must depend on the text and the context. They are the
bases of interpretation. One may well say if the text is the texture,
context is what gives the colour. Neither can be ignored. Both are
important. That interpretation is best which makes the textual
interpretation match the contextual.”
97. In Bank of India v. Vijay Transport & Ors.101, the court dealt with
the plea that a literal interpretation is not always the only interpretation of a
provision in a statute and that the court has to look at the setting in which the
words are used and the circumstances in which the law came to be passed
to decide whether there is something implicit behind the words used which
control the literal meaning of such words.102
98. The ﬁve-judge decision of this court in Central Bank of India v.
Ravindra103 held:

99 To name some, in Bipinchandra Parshottamdas Patel v. State of Gujarat
[2003 (4) SCC 642], a provision enabling the suspension of an elected
oﬃcial of a municipality, under detention during trial, was held to include
detention during investigation, having regard to the object, or the mischief
sought to be addressed by the law.”
100 1987 (2) SCR 1
101 [1988] 1 SCR 961
102 Relied on R.L. Arora v. State of Uttar Pradesh {(1964) 6 SCR 784} “It may
be that in interpreting the words of the provision of a statute, the setting in
which such words are placed may be taken into consideration, but that does
not mean that even though the words which are to be interpreted convey a
clear meaning, still a diﬀerent interpretation or meaning should be given to
them because of the setting. In other words, while the setting of the words
may sometimes be necessary for the interpretation of the words of the statute,
but that has not been ruled by this Court to be the only and the surest method
of interpretation.”
103 (2001) Supp (4) SCR 323
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“ […] Ordinarily, a word or expression used at several places in one
enactment should be assigned the same meaning so as to avoid “a
head-on clash” between two meanings assigned to the same word or
expression occurring at two places in the same enactment. It should not
be lightly assumed that “Parliament had given with one hand what it
took away with the other” (see Principles of Statutory Interpretation,
Justice G.P. Singh, 7th Edn. 1999, p. 113). That construction is to
be rejected which will introduce uncertainty, friction or confusion
into the working of the system (ibid, p. 119). While embarking upon
interpretation of words and expressions used in a statute it is possible to
ﬁnd a situation when the same word or expression may have somewhat
diﬀerent meaning at diﬀerent places depending on the subject or
context. This is however an exception which can be resorted to only
in the event of repugnancy in the subject or context being spelled out.
It has been the consistent view of the Supreme Court that when the
legislature used same word or expression in diﬀerent parts of the same
section or statute, there is a presumption that the word is used in the
same sense throughout (ibid, p. 263). More correct statement of the
rule is, as held by the House of Lords in Farrell v. Alexander All ER at
p. 736b, “where the draftsman uses the same word or phrase in similar
contexts, he must be presumed to intend it in each place to bear the
same meaning”. The court having accepted invitation to embark upon
interpretative expedition shall identify on its radar the contextual use
of the word or expression and then determine its direction avoiding
collision with icebergs of inconsistency and repugnancy.”
99. The objects that a statute seeks to achieve, are to thus be gleaned
not merely from a few expressions, in the statement of objects and reasons
(for the statute) but also from the enacted provisions. The provisions and the
objects of the SMA (as discussed in the earlier section on discrimination)
clearly point to the circumstance that Parliament intended only one kind of
couples, i.e., heterosexual couples belonging to diﬀerent faiths, to be given
the facility of a civil marriage.
100. The petitioners’ argued that the purpose of the SMA was to provide
a framework for civil marriages not based on personal law includes same-sex
marriages. Yet, structurally, Section 4 (conditions relating to solemnization
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of special marriages), contemplates marriages between a man and a woman.
To read SMA in any other manner would be contrary to established principles
of statutory interpretation as discussed in preceding paragraphs. It is also
not permissible for the court to ‘read up’ and substitute the words “any two
persons” to refer to a marriage between non-heterosexual couples.
101. Gender neutral interpretation, much like many seemingly
progressive aspirations, may not really be equitable at times and can result in
women being exposed to unintended vulnerability, especially when genuine
attempts are made to achieve a balance, in a social order that traditionally
was tipped in favour of cis-heterosexual men. The purpose of terms like
‘wife’, ‘husband,’ ‘man,’ and ‘woman’ in marriage laws (and other laws on
sexual violence and harassment as well) is to protect a socially marginalised
demographic of individuals. For instance, women facing violence by their
partner have a right to seek recourse under the Domestic Violence Act,
which assures- and is meant to assure that they (the victims) are safeguarded
and provided relief against such injustice. In fact, provisions in SMA, for
alimony, and maintenance (Section 36 and 37) confer rights to women;
likewise certain grounds of divorce (conviction of husband for bigamy,
rape) entitle the wife additional grounds (Section 27) to seek divorce. Other
provisions such as: Section 2 (b) read with Part I (for a male) and Part II (for
a female) enact separate degrees of prohibited relationships; Section 4 (c),
uses the terms “husband” and “wife”; Section 12, 15, 22, 23, 27(1), Section
31(1) (iiia) and (2) (special provision for jurisdiction in case of proceeding
for the wife), Sections 36 and 37 provide for maintenance and alimony for
the wife), Section 44 (Punishment of bigamy). The general pattern of these
provisions – including the speciﬁc provisions, enabling or entitling women,
certain beneﬁts and the eﬀect of Sections 19, 20, 21 and 21A of SMA is that
even if for arguments’ sake, it were accepted that Section 4 of SMA could
be read in gender neutral terms, the interplay of other provisions- which
could apply to such non-heterosexual couples in such cases, would lead to
anomalous results, rendering the SMA unworkable.
102. Furthermore, if provisions of SMA are to be construed as gender
neutral (such as persons or spouses, in substitution of wife and husband) as
the petitioners propose, it would be possible for a cis-woman’s husband to
ﬁle a case or create a narrative to manipulate the situation. Gender neutral
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interpretation of existing laws, therefore, would complicate an already
exhausting path to justice for women and leave room for the perpetrator
to victimise them. A law is not merely meant to look good on paper; but
is an eﬀective tool to remedy a perceived injustice, addressed after due
evaluation about its necessity. A law which was consciously created and
fought for, by women cannot, therefore, by an interpretive sleight be
diluted.
103. In fact, it would do well to remind ourselves what this court had
stated, in Delhi Transport Corporation v. DTC Mazdoor Congress (hereafter,
“Delhi Transport Corporation”)104:
“when the provision is cast in a deﬁnite and unambiguous language
and its intention is clear, it is not permissible either to mend or bend
it even if such recasting is in accord with good reason and conscience.
In such circumstances, it is not possible for the court to remake the
statute. Its only duty is to strike it down and leave it to the legislature
if it so desires, to amend it.”
Similarly, in Cellular Operators Association of India v. Telecom
Regulatory Authority of India105, the court applied the rule of Delhi Transport
Corporation (supra) and held that the construction suggested would lead
the court “to add something to the provision which does not exist, which
would be nothing short of the court itself legislating” and therefore,
impermissible.106
104. Lastly, there is no known rule by which a word or group of
words, in one provision, can have two diﬀerent meanings. The eﬀect of the
petitioner’s argument would be to say that generally, provisions of SMA
should be read in a gender neutral manner (spouse for wife and husband;
persons instead of the male and female, etc). Whilst it could in theory be
possible to read such provisions in the manner suggested, their impact
on speciﬁc provisions such as the separate lists for wives and husbands

104 (1990) Supp. 1 SCR 142
105 2016 (9) SCR 1
106 Likewise, B.R. Kapur v. State of Tamil Nadu 2001 (3) Suppl. SCR 191 - a
Constitution Bench ruling of this court, also held that interpretations which
read in words, were impermissible.
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for purposes of age, determining prohibited degrees of relationships, and
remedies such as divorce and maintenance, leads to unworkable results.
Most importantly, the court, in its anxiety to grant relief, would be ignoring
provisions that deal with and refer to personal laws of succession that are,
Sections 19, 20, 21 and 21A. This court cannot look at a text containing
words with two optional meanings in the same provision.
105. Likewise, with regard to the FMA, the petitioners’ sought
that certain conditions and provisions be read in gender neutral terms,
to enable same-sex marriage. FMA too, is a secular legislation wherein
Section 4107 states that a marriage between “parties” may be solemnized
under this Act, provided that at least one of the two parties is a citizen
of India. However, “bride” and “bridegroom” are used in Section 4
(relating to the age of the parties at time of solemnization), the Third and
Fourth Schedule (which prescribe the declarations by both parties and
certiﬁcation of marriage). In our view, the conditions for such marriages,
under Section 4(1)(c) of FMA speciﬁcally require the parties to be a ‘bride’
and a ‘bridegroom’, i.e., it is gendered in nature. Furthermore, the terms
“husband” and “wife” are used in Section 13 and 18 in relation to the
solemnisation of marriage and provisions where matrimonial reliefs (as
under the SMA) are available under the FMA. The Petitioners’ prayer
therefore, that this Court read the references to “husband” or “wife” or
“spouse” with “or spouse” in the same manner as discussed in relation
to the SMA above, is unsustainable.

107 4. Conditions relating to solemnization of foreign marriages. ―A marriage
between parties one of whom at least is a citizen of India may be solemnized
under this Act by or before a Marriage Oﬃcer in a foreign country, if, at the
time of the marriage, the following conditions are fulﬁlled, namely: -
(a) neither party has a spouse living;
(b) neither party is an idiot or a lunatic;
(c) the bridegroom has completed the age of twenty-one years and the bride the age
of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a
marriage between them, such marriage may be solemnized, notwithstanding that
they are within the degrees of prohibited relationship.
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106. As far as the petitioners’ reliance on Ghaidan108; Fourie109;
and precedents from other foreign jurisdictions are concerned, we agree
with the reasoning given by Chief Justice that our courts should exercise
caution when relying on the law in other jurisdictions. We should be
mindful of distinct contextual framework within which those decisions
have been given.
107. As discussed earlier, the words of the statutes have to be read,
taking into account the fabric of concepts, rights, obligations and remedies
which it creates. Removing or decontextualizing provisions, from their
setting and “purposively” construing some of them cannot be resorted to,
even in the case of SMA as well as FMA.
VI. Discriminatory impact on queer couples
108. I do not wish to revisit the history of how this court evolved the
test of considering the eﬀect or impact of laws on Fundamental Rights; it
would be appropriate to say that the object-based test favored and applied
in A.K. Gopalan110 was discarded decisively by the 11 judge Bench in R.C.
Cooper (supra). The true test was spelt out in the following manner:
“it is not the object of the authority making the law impairing
the right of a citizen, nor the form of action that determines the
protection he can claim; it is the eﬀect of the law and of the action
upon the right which attract the jurisdiction of the Court to grant
relief. If this be the true view, and we think it is, in determining
the impact of State action upon constitutional guarantees which
are fundamental, it follows that the extent of protection against
impairment of a fundamental right is determined not by the object
of the Legislature nor by the form of the action, but by its direct
operation upon the individual’s rights.”
This line of reasoning was applied and commended in Maneka Gandhi
(supra); it is now an intrinsic part of the constitutional lore.

108 Ghaidan v Godin – Mendoza, (2004) UKHL 30.
109 Minister of Home Aﬀairs v. Fourie & Anr, [(CCT 60/04) [2005] ZACC 19; 2006 (1)
SA 524 (CC)]
110 AK Gopalan v. State of Madras, (1950) 1 SCR 88
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109. In recent times, this court has applied, in relation to claims of
discrimination, the test of indirect discrimination. This dimension was
explained in Lt. Col Nitisha v. Union of India111:
“First, the doctrine of indirect discrimination is founded on the
compelling insight that discrimination can often be a function, not of
conscious design or malicious intent, but unconscious/implicit biases
or an inability to recognize how existing structures/institutions, and
ways of doing things, have the consequence of freezing an unjust
status quo. In order to achieve substantive equality prescribed under
the Constitution, indirect discrimination, even sans discriminatory
intent, must be prohibited.
In Navtej Johar (supra) too, earlier, the concurring judgment of the
present Chief Justice, had relied on the directive of European Parliament
which deﬁnes indirect discriminatory impact as:
“where an apparently neutral provision, criterion or practice would
put persons of one sex at a particular disadvantage compared with
persons of the other sex, unless that provision, criterion or practice is
objectively justiﬁed by a legitimate aim, and the means of achieving
that aim are appropriate and necessary.”
Interestingly, an earlier decision of this court, had relied on the concept
and application of indirect discrimination test in Om Kumar and Ors v. Union
of India112 - in the context of discussing the principle of proportionality:
“If indirect discrimination were established, the Government would
have to show ‘very weighty reasons’ by way of objective justiﬁcation,
bearing in mind that derogations from fundamental rights must
be construed strictly and in accordance with the principle of
proportionality”
Later judgments (S.K. Nausad Rahaman & Ors. v. Union of India
(UOI) & Ors113 and Ravinder Kumar Dhariwal v. Union of India114) also

111 2021 (4) SCR 633
112 2000 Supp (4) SCR693
113 2022 (12) SCC 1
114 2021 (13) SCR 823
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applied the indirect discrimination test to judge the validity of the measure
in question.
110. The common feature of the “eﬀect of the law and of the action
upon the right” in R.C. Cooper (supra) and the decisions which applied the
indirect discrimination lens, is that the objects (of the legislation or the policy
involved) are irrelevant. It is their impact, or the eﬀect, on the individual,
which is the focus of the court’s inquiry. In one sense, the development of
the indirect discrimination test, is a culmination, or fruition of the methods
which this court adopted, in judging the discriminatory impact of any law
or measure, on an individual.
111. This court in the previous sections of this judgment, has discussed
and concluded how the claim for reading a fundamental right to marry, into
the Constitution, cannot be granted. However, the court cannot be oblivious
of the various intersections which the existing law and regulations impact
to queer couples.
112. The constitution exists, and speaks for all, not the many or some.
The felt indignities of persons belonging to the LGBTQIA+ community
need no proof, of the forensic kind; it does have to meet a quantiﬁable
threshold, this court has outlined them in Navtej Johar (supra). The refusal
to acknowledge choice, by society, is because it is statedly based on long
tradition (dating back to the times when the constitution did not exist). In
such cases, the issue is does the state’s silence come in the way of this court
recognizing whether the petitioners have been denied the right to choose
their partner?
113. It is important to recognize, that while the state ipso facto may
have no role in the choice of two free willed individuals to marry, its
characterizing marriage for various collateral and intersectional purposes,
as a permanent and binding legal relationship, recognized as such between
heterosexual couples only (and no others) impacts queer couples adversely.
The intention of the state, in framing the regulations or laws, is to confer on
beneﬁts to families, or individuals, who are married. This has the result of
adversely impacting to exclude queer couples. By recognizing heterosexual
couples’ unions and cohabitation as marriages in various laws and regulations
such as: in employment (nominations in pension, provident fund, gratuity,
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life and personal accident insurance policies); for credit (particularly joint
loans to both spouses, based on their total earning capacity); for purposes of
receiving compensation in the event of fatal accidents, to name some such
instances, and not providing for non-heterosexual couples such recognition,
results in their exclusion.
114. The individual earned benefits (by each partner or both
collectively), which would be available to family members (such as
employee state insurance beneﬁts, in the event of injury of the earning
partner, provident fund, compensation, medical beneﬁts, insurance beneﬁts,
in the event of death of such earning partner) are examples of what the
injured or deceased partner by dint of her or his work, becomes entitled to,
or the members of her family become entitled to. The denial of these beneﬁts
and inability of the earning partner in a queer relationship, therefore has an
adverse discriminatory impact. The state may not intend the discrimination,
or exclusion in the conferment of such beneﬁts or social welfare measures.
Yet, the framework of such policies or regulations, expressed in favour of
those in matrimonial relationships, results in denial of entitlements/beneﬁts,
despite the professional abilities and contributions which such individuals
might to society.
115. The objective of many of these laws or schemes is to confer
or provide entitlements based on individual earning and contribution.
For example, provident fund is payable due to the employee’s personal
contribution and their status as an employee, directly ﬂowing from the
functions discharged. Similarly, the objective of entitlement of beneﬁts
under the Employee State Insurance Act, and other such insurance related
schemes or welfare measures (such as the Workman’s Compensation Act),
ﬂow from the individual status, work, and eﬀort of the concerned employee.
Major part of these beneﬁts, or all of them, ﬂow in the event of certain
eventualities such as fatal accident, or death. The design of these statutes
and schemes, is to enable both the concerned subscriber or employee (in
the event of inﬁrmity or termination of employment) to receive them, or in
an unforeseen event such as death, for his dependents to receive them. The
restrictive way in which ‘dependent’ or ‘nominee(s)’ are deﬁned (‘spouse’,
or members of the family in a heteronormative manner) exclude their
enjoyment to the intended beneﬁciary.
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116. This deprivation has to be addressed. That these can be
magniﬁed, can be illustrated by a few examples. For instance, a queer
couple might live together as spouses (without legal recognition)- even
for two decades. If one of them passes away in a motor vehicle accident,
the surviving partner would not only be unable to get any share of the
deceased partner’s estate, but also any portion of the compensation. In
case the union was not with approval of their respective families, who
might have ostracised or broken relationship with them, the result would
be injustice, because the surviving spouse, who shared life and cared for
the deceased partner, especially during hard times, would be completely
excluded from enjoying any beneﬁts - all of which would go to the family
members of the deceased (who may have even boycotted them). The same
result would occur, in the event of death of one partner; family pension
and death beneﬁts would be denied to the queer partner. This injustice
and inequity results in discrimination, unless remedial action is taken by
the state and central governments.
117. It is relevant to record a note of caution at this juncture. While
the right to marry or have a legally recognised marriage is only statutory,
the right to cohabit and live in a relationship in the privacy of one’s home
is fundamental, and enjoyed by all. This is not to say that the latter, is
unqualiﬁed or without restriction. Rather, that the latter, is a right aﬀorded
to all, irrespective of the State’s recognition of the relationship or status, as
in the case of ‘married’ couples. The discriminatory impact recognised in the
above paragraphs, however, is to highlight the eﬀect of a legislative vacuum
– speciﬁcally on long term queer couples, who do not have the avenue of
marriage, to entitle them to earned beneﬁts. Could this same logic then be
extended to heterosexual couples that choose to not get married, despite
having the avenue? With respect, this would require further consideration
by the State, and was an aspect that was neither argued, nor were we called
upon to decide, in the present petitions. Therefore, it is pointed out that State
must remain cognizant of such an unwitting consequence of creating two
parallel frameworks, for live-in or domestic partnerships, and marriages, and
the confusion or anomalies this may cause to gendered legal frameworks (as
they stand today) – while trying to remedy or mitigate the discrimination
faced by queer couples.
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118. Addressing all these aspects and concerns means considering a
range of policy choices, involving multiplicity of legislative architecture
governing the regulations, guided by diverse interests and concerns - many
of them possibly coalescing. On 03.05.2023, during the course of hearing,
the learned Solicitor General, upon instructions, had expressed the Union’s
position that a High-powered committee headed by the Union Cabinet
Secretary would be formed to undertake a comprehensive examination
to consider such impacts, and make necessary recommendations in that
regard.
VII. Transgender persons in heterosexual persons can marry under
existing law
119. We are in agreement with the Part (xi) of the learned Chief
Justice’s opinion which contains the discussion on the right of transgender
persons to marry. We are also in agreement with the discussion relating to
gender identity [i.e., sex and gender are not the same, and that there are
diﬀerent people whose gender does not match with that assigned at birth,
including transgender men and women, intersex persons, other queer
gendered persons, and persons with socio-cultural identities such as hijras]
as well as the right against discrimination under the Transgender Persons
Act 2019. Similarly, discussion on the provisions of the Transgender Persons
Act, 2019 and enumeration of various provisions, remedies it provides, and
harmonious construction of its provisions with other enactments, do not
need any separate comment. Consequently, we agree with the conclusion
[(G(m)] that transgender persons in heterosexual relations have the right to
marry under existing laws, including in personal laws regulating marriage.
The court’s aﬃrmation, of the HC judgment in Arun Kumar v. Inspector
General of Registration115 is based upon a correct analysis.
VIII. Issue of joint adoption by queer couples
120. Some of the petitioners have challenged Regulation 5(3) of the
2020 CARA Regulations. By Section 57(2) of the Juvenile Justice (Care
and Protection of Children) Act, 2015 (hereafter ‘JJ Act’), consent of both
the spouses for adoption is necessary (“shall be required”). By Section

115 (2019) Online SCC Madras 8779
1492 SUPREME COURT REPORTS [2023] 16 S.C.R.

57(5), the authority116 is enabled to frame any other criteria. CARA notiﬁed
regulations in furtherance of Section 57(3) which inter alia mandates as a
prerequisite that the prospective adopting couple should have been in a stable
marital relationship for at least 2 years117. The petitioners argued that these
regulations relating to adoption were ultra vires the parent enactment – the
JJ Act, and arbitrary for classifying couples on the basis of marital status, for
the purpose of joint adoption. We have perused the reasoning and conclusion
by the learned Chief Justice on this aspect, and are unable to concur.
121. The interpretation placed on Section 57(2) of the JJ Act by the
learned Chief Justice, is that it contemplates (joint) adoption by both married
and unmarried couples, but the condition requiring both spouses to consent
applies only to married couples. Therefore, while the JJ Act is wider in its
scope, the CARA Regulation 5(3) [in furtherance of Section 57(5) which
delegates power to prescribe any other criteria] stipulating a ‘stable marital
relationship’ exceeds the power granted by the parent Act, and is ultra vires
the express provisions and legislative policy of the JJ Act. Our disagreement
with this characterization is laid out in Part A below. Thereafter, the learned
Chief Justice has read down oﬀending part ‘marital’ from Regulation 5(3),
and held that the requirement of ‘consent’ embodied in Regulation 5(2)(a)
would be equally applicable on both married and unmarried couples. We are
of the ﬁrm opinion that the exercise of reading down itself, is unsustainable
[See part B below] and hence, this consequence though favourable, cannot
apply. Our reasoning in relation to the aspect of adoption by queer couples,
and the indirect discrimination faced, is elaborated in Part C.

116 CARA (Central Adoption Resource Agency) formed under Section 68
117 5. Eligibility criteria for prospective adoptive parents.―
(1) The prospective adoptive parents shall be physically, mentally, emotionally and
ﬁnancially capable, they shall not have any life threatening medical condition
and they should not have been convicted in criminal act of any nature or accused
in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and whether
or not they have biological son or daughter, can adopt a child subject to the
following, namely:― (a) the consent of both the spouses for the adoption shall
be required, in case of a married couple; (b) a single female can adopt a child of
any gender; (c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have at least two
years of stable marital relationship except in the cases of relative or step-parent
adoption.
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A. Not a case of delegated legislation being ultra vires the parent Act
122. With respect, we disagree with the interpretation of Section
57(2) of the JJ Act itself. A reading of the provision as a whole, makes it
amply clear that it intends joint adoption only to married couples. While
the word “couple” is not preceded by ‘married’, the use of “spouse” later
in the sentence, rules out any other interpretation. The principle of noscitur
a sociis (meaning of a word should be known from its accompanying or
associating words) is squarely applicable; a provision is to be seen as a
whole, wherein words are to be read in the context of accompanying or
associating words. In K. Bhagirathi G. Shenoy and Ors. v. K.P. Ballakuraya
& Anr.118, it was observed:
“It is not a sound principle in interpretation of statutes to lay emphasis
on one word disjuncted from its preceding and succeeding words.
A word in a statutory provision is to be read in collocation with its
companion words. The pristine principle based on the maxim noscitur
a sociis (meaning of a word should be known from its accompanying
or associating words) has much relevance in understanding the import
of words in a statutory provision.”
Furthermore, such an interpretation – of construing a part of one
provision as operating to one set of people, and not others, is simply not
known to law.
123. To read Section 57(2) as enabling both married and unmarried
couples to adopt, but that the statutory provision contemplates a restriction
or requirement of ‘consent’ only on the former kind of couple is not based on
any known principle of interpretation. There is a strong legislative purpose
in the requirement of obtaining consent of the spouse, which is rooted in the
best interest of the child; for their welfare, and security. The parent Act, and
delegated legislation, both are clear that a prospective adoptive parent can
be a single person (whether unmarried, widower, etc.) and on them, there
exists no restriction other than on a single male being barred from adopting
a girl child. The restriction of ‘consent’ of partner, applies only in the case of
a couple. This is because the child will enter into a family unit – consisting

118 [1999] 2 SCR 438
1494 SUPREME COURT REPORTS [2023] 16 S.C.R.

of two parents, as a result of the adoption and will in reality, enjoy the home
that is made of both partners. Acceptance, therefore, of the other partner,
is imperative; it would not be in the best interest of the child if one of the
partners was unwilling to take on the responsibility. The only other legislative
model is Section 7 and 8 of the Hindu Adoption and Maintenance Act, 1956
which mandates consent of both spouses (which much like other personal
laws, uses the gendered language of “wife” and “husband”).
124. Therefore, given that we diﬀer on the starting point itself – that
section 57(2) of the JJ Act permits joint adoption by both married and
unmarried couples (as held by the learned Chief Justice) – we are of the
considered opinion that is not a case of delegated legislation being ultra
vires the parent Act.
125. The legislative choice, of limiting joint adoption only to married
couples needs to be understood in the broader context of the JJ Act, and
its purpose – which is the best interest of the child are paramount. Legal
beneﬁts and entitlements, ﬂow either from/in relation to the individual
adopting (when a single person adopts), or the married couple adopting
as a unit. In the case of bereavement, of such single parent, custody of the
child may be taken by a relative in the former, whereas continued by the
surviving spouse, in the latter. But consider, that in the case of a married
couple – there is a breakdown of marriage, or simply abandonment/neglect
of one partner and the child, by the other. There are protections in the law, as
they stand today, that enable such deserted, or neglected spouse, to receive
as a matter of statutory right – maintenance, and access to other protections.
Undoubtedly, the DV Act oﬀers this protection even to those in an unmarried
live-in relationship, but consider a situation that does not involve domestic
violence, and is plain and simple a case of neglect, or worse, desertion. It
is arguable that both partners, are equally responsible for the child after the
factum of adoption; however – it begs the question, how can one enforce
the protection that is due to this child?
126. The JJ Act merely enables adoption, but for all other consequences
(i.e., relating to the rights of a child qua their parents, and in turn obligations
of a parent towards the said child) reference has to be made to prevailing
law (law relating to marriage and divorce, maintenance, succession,
guardianship, custody, etc.). When a single person adopts as an individual,
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their capabilities are assessed as per Section 57(1) [and Regulation 5(1)],
and the responsibility of that child – falls squarely on this individual. If
that person enters into a relationship, whether it later succeeds, or fails, is
immaterial – the responsibility of the child remains squarely on the individual
(until they are married, and the partner legally adopts the child). When a
couple adopts, they are jointly assessed, and in law, the responsibility falls
on both parents. If one parent was to abandon the relationship, and the other
parent is unable to maintain themselves or the child by themselves– recourse
lies in other statutory provisions which enable remedy to be sought. 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. This, therefore,
would not be in the best interest of the child.
B. Not a case for reading down or other interpretive construction
127. Counsel relied on the case of X v. Principal Secretary (supra)
where this court read down ‘married woman’ to just ‘woman’ for the purpose
of interpretating the MTPA Act, to argue that a similar interpretation be
adopted for the law relating to adoption. In our considered opinion, that case
was on a diﬀerent footing altogether – it related to an individual woman’s
right to choice and privacy, aﬀecting her bodily autonomy. Given the
fundamental right that each childbearing individual has, and the objective of
the Act, the classiﬁcation on the basis of marital status, was wholly arbitrary.
The JJ Act and its regulations are on a diﬀerent footing. Here, the object
of the Act and guiding principle, is the best interest of the child (and not to
enable adoption for all).
128. It is agreeable that all marriages may not provide a stable home,
and that a couple tied together in marriage are not a ‘morally superior choice’,
or per se make better parents. Undoubtedly, what children require is a safe
space, love, care, and commitment – which is also possible by an individual
by themselves, or a couple– married or unmarried. There is no formula for
a guaranteed stable household. Principally, these are all conclusions we
do not diﬀer with. As a society, and in the law, we have come a long way
from the limited conception of a nuclear family with gendered roles, and
privileging this conception of family over other ‘atypical’ families. However,
1496 SUPREME COURT REPORTS [2023] 16 S.C.R.

the fact that Parliament has made the legislative choice of including only
‘married’ couples for joint adoption (i.e., where two parents are legally
responsible), arises from the reality of all other laws wherein protections and
entitlements, ﬂow from the institution of marriage. To read down ‘marital’
status as proposed, may have deleterious impacts, that only the legislature
and executive, could remedy – making this, much like the discussion on
interpretation of SMA, an outcome that cannot be achieved by the judicial
pen. Having said this, however, there is a discriminatory impact on queer
couples, perhaps most visible through this example of adoption and its
regulation, that requires urgent state intervention (elaborated in Part C).
129. Furthermore, the previous analysis of SMA has led this Court
to conclude that its provisions cannot be modiﬁed through any process of
interpretation and that the expression “spouse” means husband and wife or
a male and female as the case may be, on an overall reading of its various
provisions. By Section 2(64) of the JJ Act, expressions not deﬁned in that
Act have the same meanings as deﬁned in other enactments. The SMA is one
example. Likewise, the other enacted laws with respect to adoption is the
Hindu Adoption and Maintenance Act. That contains the expression “wife
and husband”. In these circumstances, we are of the opinion that the manner
in which Section 57(2) is cast, necessitating the existence of both spouse and
their consent for adoption of a child. In such a relationship, Regulation 5(3)
cannot be read down in the manner suggested by the learned Chief Justice.
130. Therefore, in our opinion, whilst the argument of the petitioners is
merited on some counts, at the same time, the reading down of the provision
as sought for would result in the anomalous outcome that heterosexual
couples who live together, but choose not to marry, may adopt a child
together and would now be indirect beneﬁciaries, without the legal protection
that other statutes oﬀer – making it unworkable (much like the discussion
on SMA in Part V).
C. Discriminatory impact of adoption regulations on queer persons
131. Section 57(2) of that Act spells out the eligibility conditions
of prospective adoptive parents. The petitioner’s argument was that the
expression “marital” results in discrimination inasmuch as single parent
can adopt – the only prohibition being that a single man cannot adopt a
girl child. Further, if a single man and/or a single woman choose to adopt
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separately as an individual, and live together, the resultant de facto parents
would still have a choice of marrying each other – for the child in question
to be legally the child of both parents. Or put diﬀerently, if a heterosexual
couple wants to adopt a child jointly, they have the option of entering into a
marriage, thereby making them eligible for joint adoption. However, in the
absence of legal recognition of a queer couple union, they are left to adopt
as individuals and the resultant de facto family would have no avenue for
legal recognition. This iniquitous result too is an aspect which needs to be
addressed as the impact here is not only on the queer couple (who have no
avenue to seek legal recognition of their union) but also upon the children
adopted by them (who have no say in the matter).
132. Furthermore, given the social reality that queer couples are having
to adopt in law as individuals, but are residing together and for all purposes
raising these children together – means that the State arguably has an even
more urgent need to enable the full gamut of rights to such children, qua
both parents. For instance, in an unforeseen circumstance of death of the
partner who adopted the child as an individual, the child in question may
well become the ward of such deceased’s relatives, who might (or might not)
even be known to the child, whereas the surviving partner who has been a
parent to the child for all purposes, is left a stranger in the law. Therefore,
this is yet another consequence of the non-recognition of queer unions, that
the State has to address and eliminate, by appropriate mitigating measures.
133. This is not to say that unmarried couples – whether queer or
heterosexual– are not capable or suitable, to be adoptive parents. However,
once the law permits, as it has done – adoption by both single individuals, the
likelihood of their joining and co-habiting cannot be ruled out. In such event,
de facto family unit can and do come about. The underlying assumption in
the law as it exists, that such unmarried heterosexual or queer couples should
not adopt needs to be closely examined. Similarly, the need of such couples
to have and raise a family in every sense of the term, has to be accommodated
within the framework of the law, subject to the best interests of the child.
The existing state of aﬀairs which permits single individuals to adopt, and
later to live as a couple in due exercise of their choice, in eﬀect deprives the
children of such relationships various legal and social beneﬁts, which are
otherwise available to children of a married couple. In other words, given
1498 SUPREME COURT REPORTS [2023] 16 S.C.R.

the objective of Section 57 and other allied provisions of the JJ Act, which
is beneﬁcial for children, the State as parens patriae needs to explore every
possibility and not rule out any policy or legislative choice to ensure that
the maximum welfare and beneﬁts reach the largest number of children in
need of safe and secure homes with a promise for their fullest development.
This aspect is extremely important given that a large number of children
remain neglected, or orphaned.
134. It goes without saying that the welfare and the beneﬁt of the
children is paramount in every case, and the State has the duty to act as
parens patriae. That our country has countless children who are orphaned
or neglected, and in need of loving homes, is not lost on us – and is certainly
a concern that the State is most acutely aware of. In these circumstances, it
would be in the general interest of all children that such impact is removed
at the earliest instance, after undertaking in-depth study and analysis of
the various permutations and combinations that would arise in opening
adoption more widely, without hampering the child’s rights. In its exercise
of reframing the regulations or laws, it is reiterated that the State cannot, on
any account, make regulations that are facially or indirectly discriminatory
on the ground of sexual orientation. It would be entirely wrong, if the
observations herein, are construed as saying that the State should hamper
or interfere in queer persons who have in the past, or are seeking to adopt
as individuals. These observations are to be construed to enable the state
to consider all options, and implications, with the object of promoting the
best welfare of children, especially whether joint adoption can be facilitated
to such willing couples, even while ensuring that the legal web of statutory
protections and entitlements guaranteed to children, are operationalised for
these children as well.
135. These observations are not meant to impede all possibilities
and make all necessary policy and legislative changes, enabling children’s
welfare. In other words, the possibility of queer couples adopting children,
should be given equal concern and consideration having regard to the larger
interest of the largest number of children and their development.
IX. Moulding relief
136. The breadth and amplitude of this court’s jurisdiction is
incontestable. The constitution framers created this as a fundamental
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right in most emphatic terms. This jurisdiction enables the court to create
and fashion remedies suited for the occasion, oftentimes unconstrained
by previous decisions. Yet the breadth of this power is restrained by the
awareness that it is in essence judicial. The court may feel the wisdom of
a measure or norm that is lacking; nevertheless, its role is not to venture
into functions which the constitution has authorised other departments
and organs to discharge.
137. Social acceptance is an important aspect of the matrimonial
relationship, but that is not the only reality; even in the exercise of choice
by the parties to a marriage, there may be no acceptance at all, by members
of their respective families; others too may shun them. Yet, their relationship
has the beneﬁt of the cover of the law, since the law would recognize their
relationship, and aﬀord protection, and extend beneﬁts available to married
persons. This however eludes those living in non-heterosexual unions, who
have no such recognition in all those intersections with laws and regulations
that protect individual and personal entitlements that are earned, welfare
based, or compensatory. The impact, therefore, is discriminatory.
138. Does the existence of such discriminatory impacts, in these
intersections with the state, and arising out of a variety of regulations and
laws, impel this court to fashion a remedy, such as a declaration, which enjoin
legislative activity, or instruct the executive to act in a speciﬁed manner,
i.e., achieving non-heterosexual couple marriage? This aspect cannot be
viewed in isolation, but in the context of our constitution’s entrenchment
of separation of powers, which according to Kesavananda Bharati (supra),
Indira Gandhi119 and other judgments constitutes an essential feature of
the Constitution. It is one thing for this court, to commend to the state,
to eliminate the discriminatory impact of the intersections with laws and
publicly administered policies and institutions, upon non-heterosexual
couples, and entirely another, to indirectly hold that through a conﬂation of
positive obligations cast on the State, that such individuals’ right to choice
to cohabit and form abiding relationships, extends to the right (or some
entitlement) to a legally recognised union that must be actualized by State
policy/legislation.

119 Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1
1500 SUPREME COURT REPORTS [2023] 16 S.C.R.

139. The petitioners relied on three judgments speciﬁcally, to argue that
this court could issue directions, to ﬁll the legal lacunae: Common Cause
(supra), Vishaka & Ors v. State of Rajasthan (hereafter, “Vishaka”) 120 and
NALSA (supra). We have brieﬂy summarized why these were in a context
diﬀerent from the case before us.
140. In Common Cause (supra), the court elaborated on the theme of
liberty under Article 21 of the Constitution and the façade of dignity inherent
in it. The Court relied on Port of Bombay v. Dilipkumar Raghavendranath
Nadkarni121, Maneka Gandhi (supra), and State of A.P. v. Challa Ramkrishna
Reddy122. The court also relied on K.S. Puttaswamy (supra), NALSA (supra)
and Shabnam v. Union of India123 to underline the intrinsic value of dignity
and further stated that life is not conﬁned to the integrity of physical body.
Having said that, the Court formulated the right under Article 21 to include
the right to die with dignity, of a dying or terminally ill person and approved
the application of only passive euthanasia. The Court further went on to
approve the idea of individual autonomy and self-determination, underlining
the context expanded and built upon the directions which had been granted
in the earlier judgment in Aruna Ramchandra Shanbaug v. Union of India
(hereafter, “Aruna Shanbaug”)124. The Court was also inﬂuenced by the
recommendations of the 241st Law Commission Report which had suggested
incorporation of additional guidelines in addition to an elaboration of what
had been spelt out in Aruna Shanbaug (supra). The Court rejected the
argument that the previous ruling in Gian Kaur v. State of Punjab125 did not
rule that passive euthanasia can only be given eﬀect to through legislation
and further that the Court could only issue guidelines.
141. The approach of Common Cause (supra) as can be seen from
the varied opinions of the Judges forming the Bench was one of seeing
the workability and the need to elaborate guidelines formulated in Aruna
Shanbaug (supra). The Court had no occasion, really speaking, but to consider

120 1997 Supp 3 SCR 404
121 (1983) 1 SCR 828
122 (2000) 3 SCR 644
123 (2015) 8 SCC 289
124 Aruna Ramchandra Shanbaug v. Union of India, (2011) 4 SCR 1057.
125 (1996) 3 SCR 697
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whether the directions given could not have been given. Furthermore, there
were reports in the form of Law Commission recommendations which
formed additional basis for the Court’s discretion and the ﬁnal guidelines.
An important aspect is that all judgments in Common Cause (supra) located
the right to passive euthanasia premising upon the right to human dignity,
autonomy and liberty under Article 21.
142. Vishaka (supra) was an instance where in every sense of the term,
there was all round cooperation as is evident from the position taken by the
Union of India which had expressly indicated that guidelines ought to be
formulated by the Court. The trigger for these guidelines was the resolve
that gender equality (manifested in Articles 14 and 15 of the Constitution
as well as the right to dignity) and the right to pursue one’s profession and
employment [Article 19(1)(g)] needed some express recognition to ensure
protection from sexual harassment in the workplace and to work with
dignity, is a basic human right which needed to be addressed in the context
of women at workplace. The Court took note of international conventions
and instruments and also held that guidelines had to be formulated for
enforcement of Fundamental Rights till a suitable law is made. The Court
expressly indicated what kind of behaviour was sexual harassment (para
2 of the guidelines) and further that regulations had to be formulated for
prohibited sexual harassment and providing for appropriate penalties
at workplace. Other directions were that if the conduct amounted to an
oﬀence, the employer had to initiate appropriate action according to law
and also ensure that the victims had to be given the option of transfer of
their perpetrator or their own transfer. Furthermore, disciplinary action in
terms of the rules was directed with a further requirement that necessary
amendments were to be carried out. The Court then went on to request the
State to consider adopting suitable measures indicating legislation to ensure
that the guidelines in the order were employed by the Government.
143. Central to the idea of issuing directions or guidelines in Vishaka
(supra) was the felt need to address a living concern - that of providing
redressal against socially repressible conduct suﬀered by women in the
course of employment. The Court stepped in, so to say, to regulate this
behaviour in public places, which though not criminalized or outlawed
(other than in the limited context of Section 354 IPC) actually tended
1502 SUPREME COURT REPORTS [2023] 16 S.C.R.

towards criminal behaviour. The Court articulated the constitutional vision
for bringing about gender parity and to that end, elimination of practices
which tended to lower the dignity and worth of women through unacceptable
behaviour. Guided by Article 15(3), the court stepped in, while limiting
itself to regulate workplaces essential in the public ﬁeld (State or State
agencies). The Union of India was actively involved and in fact had given
suggestions, at the time of formulation of these guidelines. At the same
time, the court realized its limitation and declared that such guidelines shall
continue till appropriate laws are made. Existing service rules were in fact
amended to accommodate these concerned, to the extent of incorporating
the forums through which such grievance could be articulated. This later
culminated in the Sexual Harassment of Women at Workplace (Prevention,
Prohibition and Redressal) Act, 2013 which applies not merely to public
but all establishments.
144. In NALSA (supra), the Court again was confronted with an acute
concern wherein the personhood of transgender persons itself, was not
recognized. The court held that the intrinsic worth of every individual and
the value of individuals to fully realise their rights, was a premise embedded
in the Constitution. The Court sought to address hostile discriminatory
practices, which included violence that transgender persons were subjected
to routinely. Given all these circumstances, the Court located the right
of those identifying themselves as transgender persons squarely under
Article 21 of the Constitution. Any discriminatory practice against such
persons, would violate their Article 15 right under the Constitution. The
directions given by the Court were that such persons should be treated as
third gender, where appropriate, and granted legal protection to their self-
identiﬁed gender identity. Further, that the State and Central Government
should seriously address problems faced by them by providing measures
for medical care and facilities in hospitals, permitting them access to social
welfare schemes for their betterment and take other measures. The court
also constituted an expert committee to make an in-depth study of problems
faced by transgender persons.
145. In the present case, however, the approach adopted in the above
three cases would not be suitable. The court would have to fashion a
parallel legal regime, comprising of deﬁned entitlements and obligations.
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Furthermore, such framework containing obligations would cast
responsibilities upon private citizens and not merely the State. The learned
Chief Justice’s conclusions also do not point towards directions of the kind
contemplated in Vishaka (supra). However, the outlining of a bouquet of
rights and indication that there is a separate constitutional right to union
enjoyed by queer couples, with the concomitant obligation on the State to
accord recognition to such union, is what we take exception to.
X. Conclusion and directions
146. Marriage, in the ultimate context, is not deﬁned merely by the
elements, which delineate some of its attributes, and the diﬀering importance
to them, depending on times, such as permanence of a sexual partner;
procreation and raising of children, stability to family, and recognition in
the wider society. Some, or most of these elements may be absent in many
relationships: there may be no procreative possibility due to choice, or
otherwise; some marriages may have no wider context, such as absence
of the larger family circle, due to several reasons, including alienation
or estrangement; there may be no matrimonial home, in some marriage,
because of constraints including spouses being located in diﬀerent places;
some marriages may be (by choice or otherwise) bereft of physical or
sexual content. Yet, these marriages might be as successful, as fulﬁlling
and complete as any other. The reason, in this author’s opinion, is that at its
core, marriage has signiﬁed companionship, friendship, care and spiritual
understanding a oneness, which transcends all other contents, and contexts.
Thus, “home” is not a physical structure; it is rather the space where the
two individuals exist, caring, breathing and thinking, living for each other.
This is how traditionally it has been understood.
147. This feeling need not be unique to marriage; and in fact has come
to be enjoyed by many without the cover of it (for e.g., those who are simply
in committed cohabitational relationships). While many others, may only
be able to experience such a feeling and way of life, if it were to have the
legitimacy in society, akin to marriage. That law has the potential to play
such a legitimising role, cannot be overstated. The feeling of exclusion
that comes with this status quo, is undoubtedly one which furthers the
feeling of exclusion on a daily basis, in society for members of the queer
community. However, having concluded that there exists no fundamental
1504 SUPREME COURT REPORTS [2023] 16 S.C.R.

right to marry, or a right to claim a status for the relationship, through the
medium of a law (or legal regime) and acknowledged the limitations on
this court in moulding relief, this court must exercise restraint; it cannot
enjoin a duty or obligation on the State to create a framework for civil
union or registered partnership, or marriage, or abiding co-habitational
relationship. Yet, it would be appropriate to note that everyone enjoys the
right to choice, dignity, non-discrimination, and privacy. In a responsive
and representative democracy which our country prides itself in being,
such right to exercise choices should be given some status and shape.
Of course, what that should be cannot be dictated by courts. At the same
time, prolonged inactivity by legislatures and governments can result
in injustices. Therefore, action in this regard, would go a long way in
alleviating this feeling of exclusion that undoubtedly persists in the minds
and experiences, of this community.
148. The resultant adverse impact suﬀered by the petitioners in
relation to earned beneﬁts [as elaborated in Part VI], solely because of the
State’s choice to not recognise their (social) union or relationship, is one
which results in their discrimination. This discriminatory impact – cannot
be ignored, by the State; the State has a legitimate interest necessitating
action. The form of action – whether it will be by enacting a new umbrella
legislation, amendments to existing statutes, rules, and regulations that as
of now, disentitle a same-sex partner from beneﬁts accruing to a ‘spouse’
(or ‘family’ as deﬁned in the heteronormative sense), etc.– are policy
decisions left to the realm of the legislature and executive. However, the
recognition that their non-inclusion in a legal framework which entitles
them, and is a prerequisite eligibility criteria for myriad earned and accrued
beneﬁts, privileges, and opportunities has harsh and unjust discriminatory
consequences, amounting to discrimination violating their fundamental
right under Article 15 – is this court’s obligation, falling within its remit.
The State has to take suitable remedial action to mitigate the discriminatory
impact experienced by the members of the queer community, in whatever
form it deems ﬁt after undertaking due and necessary consultation from
all parties, especially all state governments and union territories, since
their regulations and schemes too would have to be similarly examined
and addressed.
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149. This court hereby summarizes its conclusions and directions as
follows:
i. There is no unqualiﬁed right to marriage except that recognised
by statute including space left by custom.
ii. An entitlement to legal recognition of the right to union – akin to
marriage or civil union, or conferring legal status upon the parties
to the relationship can be only through enacted law. A sequitur
of this is that the court cannot enjoin or direct the creation of
such regulatory framework resulting in legal status.
iii The ﬁnding in (i) and (ii) should not be read as to preclude queer
persons from celebrating their commitment to each other, or
relationship, in whichever way they wish, within the social realm.
iv. Previous judgments of this court have established that queer and
LGBTQ+ couples too have the right to union or relationship
(under Article 21) – “be it mental, emotional or sexual” ﬂowing
from the right to privacy, right to choice, and autonomy. This,
however, does not extend to a right to claim entitlement to any
legal status for the said union or relationship.
v. The challenge to the SMA on the ground of under classiﬁcation
is not made out. Further, the petitioner’s prayer to read various
provisions in a ‘gender neutral’ manner so as to enable same-sex
marriage, is unsustainable.
vi. Equality and non-discrimination are basic foundational rights.
The indirect discriminatory impacts in relation to earned or
compensatory beneﬁts, or social welfare entitlements for which
marital status is a relevant eligibility factor, for queer couples
who in their exercise of choice form relationships, have to be
suitably redressed and removed by the State. These measures
need to be taken with expedition because inaction will result
in injustice and unfairness with regard to the enjoyment of
such beneﬁts, available to all citizens who are entitled and
covered by such laws, regulations or schemes (for instance,
those relating to employment beneﬁts: provident fund, gratuity,
family pension, employee state insurance; medical insurance;
1506 SUPREME COURT REPORTS [2023] 16 S.C.R.

material entitlements unconnected with matrimonial matters,
but resulting in adverse impact upon queer couples). As held
earlier, this court cannot within the judicial framework engage
in this complex task; the State has to study the impact of these
policies, and entitlements.
vii. Consistent with the statement made before this Court during
the course of proceedings on 03.05.2023, the Union shall set
up a high-powered committee chaired by the Union Cabinet
Secretary, to undertake a comprehensive examination of all
relevant factors, especially including those outlined above. In
the conduct of such exercise, the concerned representatives of
all stakeholders, and views of all States and Union Territories
shall be taken into account.
viii. The discussion on discriminatory impacts is in the context of
the eﬀects of the existing regimes on queer couples. While a
heterosexual couple’s right to live together is not contested, the
logic of the discriminatory impact [mentioned in conclusion
(vi) above] faced by queer couples cohabiting together, would
deﬁnitionally, however, not apply to them.
ix. Transgender persons in heterosexual relationships have the
freedom and entitlement to marry under the existing statutory
provisions.
x. Regulation 5(3) of the CARA Regulations cannot be held void
on the grounds urged. At the same time, this court is of the
considered opinion that CARA and the Central Government
should appropriately consider the realities of de facto families,
where single individuals are permitted to adopt and thereafter
start living in a non-matrimonial relationship. In an unforeseen
eventuality, the adopted child in question, could face exclusion
from the beneﬁts otherwise available to adopted children of
married couples. This aspect needs further consideration, for
which the court is not the appropriate forum.
xi. Furthermore, the State shall ensure - consistent with the previous
judgment of this Court in K.S. Puttaswamy (supra), Navtej Johar
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(supra), Shakti Vahini (supra) and Shaﬁn Jahan (supra)- that
the choice exercised by queer and LGBTQ couples to cohabit is
not interfered with and they do no face any threat of violence or
coercion. All necessary steps and measures in this regard shall
be taken. The respondents shall take suitable steps to ensure that
queer couples and transgender persons are not subjected to any
involuntary medical or surgical treatment.
xii. The above directions in relation to transgender persons are to
be read as part of and not in any manner whittling down the
directions in NALSA (supra) so far as they apply to transgender
persons.
xiii. This court is alive to the feelings of being left out, experienced by
the queer community; however, addressing their concerns would
require a comprehensive study of its implications involving a
multidisciplinary approach and polycentric resolution, for which
the court is not an appropriate forum to provide suitable remedies.
XI. Postscript
150. We have the beneﬁt of the ﬁnal draft by the learned Chief Justice,
which contains Section E ‘responses to the opinion of the majority’ as well.
Similarly, we have the beneﬁt of perusing the separate opinion of Sanjay
Kishan Kaul, J. While it would not be necessary to deal pointedly with the
responses of my learned brothers, certain broad aspects are addressed in
the following paragraphs, to clear the air or dispel any misunderstanding.
151. The learned Chief Justice in his response seeks to highlight that
the Court has in the past exercised its powers under Article 32 in respect
of enforcement of various fundamental rights and cited certain precedents.
A close look at each of them would reveal that in almost all cases, the
Court enforced facets of personal liberty, or an aspect that was the subject
of legislation. The allusion to cases dealing with subjects, particularly,
incarceration of persons with mental disabilities (Sheela Barse126), the right
to speedy trial (State of Punjab v. Ajaib Singh127), legal aid (Manubhai Pragji

126 1993 Supp (1) SCR 561
127 1995 (1) SCR 496
1508 SUPREME COURT REPORTS [2023] 16 S.C.R.

Vashi128 etc. are directly concerned with personal liberty. The reference to
cases dealing with clean environment, is also a facet of Article 21. In fact,
there are enacted laws in the ﬁeld of environment protection. The allusion
to the directions in PUCL v. UOI129 is pertinent; in that judgment, the Court
in fact issued a series of directions to the State, operationalizing existing
government schemes, and issuing consequential directions, to mitigate
large-scale loss of grains, by directing that they be distributed/channelized
by the State, into the PDS system. The other decision, State of H.P. v. Umed
Ram Sharma130 was a case where the High Court had directed speedy
implementation and construction of a road which had been sanctioned by
the State but had been left incomplete. It was held that direction was not to
supervise the action but only to the apprise state of the inaction to bring about
a sense of urgency. The court also observed importantly that it is primarily
within the domain of the executive to determine the urgency and manner of
priorities of the need of any law. This court by its judgment even observed
that there was nothing wrong in such directions, since a sanction for the
road had been obtained but there was tardy implementation of the same.
152. That certain fundamental rights have positive content, or
obligation, is not disputed – in fact, in paragraph 57 this has been
elaborated; exception was instead taken to the approach suggested by
the learned Chief Justice, of tracing the right to union from a conjoint
reading of multiple Articles (clauses of Article 19, 25 and 21), as
necessitating the creation of a legal status to the relationship (a result
of the obligation to “accord recognition”) and enunciation of a bouquet
of entitlements ﬂowing from this [see paragraph 336(i)]. With respect,
such a direction is in the nature of creating a legal status. Further, the
discussion on the absence of law, and limited extent of positive rights
under Article 19 and 25 in our opinion, was in fact to insist that rather
than ordering liberties and enumerating every possible right or the way
in which it is to be enjoyed, the content of fundamental rights are that
they take up all the space, until restricted – which can be tested on the
ground of its reasonableness, as per the limitations in Part III. This in

128 1995 Supp (2) SCR 733
129 W.P.(C)196/2001
130 1986 (1) SCR 251
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no manner takes away from the previous jurisprudence of this Court
where positive obligation under Article 21 has been expounded to locate
several obligations upon the State.
153. This Court’s observations with respect to the learned Chief
Justice’s reasoning centered around the enunciation of the bouquet of
rights emanating from various provisions other than Article 21 [Article 19
and 25], and locating an obligation, has to be seen in the backdrop of the
unanimous view of this Court, that the fundamental right to marry is not
found within the Constitution. Therefore, it is our considered opinion that
to create an overarching obligation upon the State to facilitate through
policies the fuller enjoyment of rights under Article 19 and 25, is not
rooted in any past decision, or jurisprudence. That queer couples have
the right to exercise their choice, cohabit and live without disturbance –
is incontestable. In the same vein, that they are owed protection against
any threat or coercion to their life, is a positive obligation that binds the
State– this is a natural corollary of their right under Article 21.
154. Consider in this context, also the nature of the relief sought,
and the positive obligation fashioned. While there are innumerable
judgments on the positive content of rights under Article 21, there are
also countless judgments that insist upon the separation of powers, when
it comes to matters of policy, and the courts not being the appropriate
forum for the adjudication of the same. The polycentric nature of the
issue, is compelling.
155. Next, on the charge levelled that our conclusion on the
challenge to the SMA (Part V of this judgment) and subsequently ﬁnding
on the disparate or discriminatory impact faced by the queer community
(Part VI) being contradictory – a small comment is called for. The section
discussing the provisions of the SMA and the challenge to its validity, was
based entirely upon whether it violated the Constitution on the ground of
impermissible classiﬁcation (under Article 14) – for which, the object of
the Act (i.e., to facilitate marriage between inter-faith couples, wherein at
the time ‘marriage’ or even a ‘couple’ only denoted heterosexual couples
in light of same sex relations being criminalized), and its provisions,
are relevant factors. Classiﬁcation, involves diﬀerentiation; further, this
court has discussed how ‘under classiﬁcation’ per se does not warrant
1510 SUPREME COURT REPORTS [2023] 16 S.C.R.

invalidation. In contrast, in the latter segment on discriminatory impact
(Part VI), the issue that this court was considering, was not reasonable
classiﬁcation but the impact upon queer couples through neutral laws
or regulations that they encounter in their everyday lives; the purpose
of which, or even their substantive provisions, have nothing to do with
matrimony. Its rather to confer other beneﬁts – many of which are earned
or accrued on account of individual skill and attainment. Yet the framing
of some beneﬁts or their intended beneﬁciary – wherever articulated in
terms of entitlement to families or spouses, tends to exclude from its
ambit, queer couples and their lived realities. When such queer couples
are entitled to beneﬁts wherever they fulﬁl other eligibility criteria; it
is the disparate impact of these neutral laws in disbursal of entitlements
or beneﬁts, which is seen through the eﬀect/impact lens. Therefore, the
discussion on the constitutionality of the SMA is markedly diﬀerent
from the section on discriminatory impact in certain points for queer
persons, as they have no avenue for marriage like heterosexual persons.
In the latter, the impact of various laws were pointed as a starting point
for the State to take remedial action.
156. What is apparent, however, from our judicial diﬀerences
and the manner in which we have articulated them – is that a certain
question, of fair signiﬁcance, arises: whether the absence of law or a
regulatory framework, or the failure of the State to enact law, amounts
to discrimination that is protected131 against under Article 15? With
respect, this was perhaps neither argued, nor answered by us; our
opinion is limited to testing the provisions of the SMA for violation of
fundamental rights and noticing that there are various cracks through
which the queer community slip through, in other neutral laws, policies
and frameworks, due to the manner in which they privilege marital/
spousal status (access to which, is not enabled/possible under existing
law). Article 15(1) now, can be understood as permitting a classiﬁcation

131 Sexual orientation has been recognised under ‘sex’ in Article 15 by this court in
Navtej Johar (supra) and does not merit elaboration, further than to say that any law
or policy which directly, or indirectly, discriminates against a queer individual on the
basis of their sexual orientation would fall foul of the Constitution, unless the law is
a permissible classiﬁcation.
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for the purpose of fashioning policies. Can the state’s omission to create
a classiﬁcation, and further, its absence of a policy for a distinct group,
which in the court’s opinion deserves favourable treatment, amount to
violation of Article 15? There is no known jurisprudence or case law
(yet) pointing to the absence of law being considered as discrimination
as understood under Article 15.
157. The learned Chief Justice has dealt with in some detail on
that section of our judgment, on adoption [Part VIII]. The underlying
premise of his comments seek to highlight that the existing legal
framework aﬀords protection in the event of an unforeseen eventuality
like abandonment, or sudden death of one partner. It is incontestable that
Section 63 of the JJ Act, provides legal status to the child, in relation to
their adoptive parent(s). However, that per se, is not adequate to address
all concerns relating to the child. There would be diﬃculties faced by
children, in claiming entitlements such as maintenance, in the absence of
a general law. The example given by the learned Chief Justice illustrates
this: beneﬁt under the Hindu Adoption and Maintenance Act (which is
available only to Hindus, but accommodates both genders, unlike other
laws). A suggestion of Section 125 of the Criminal Procedure Code
would give rise to the same set of diﬃculties as the earlier discussion on
SMA. In other words, to obviate the gendered language, an interpretive
exercise of the kind ruled out for the interpretation of SMA, would be
necessary. It is for these reasons, that we highlighted the need for the
State to consider all aspects [para 133-135]. This court would reiterate
that there is no basis for interpreting the term ‘couple’ under Section 57(2)
of the JJ Act as including both married and unmarried couples, given
the use of the word ‘spouse’ in the very same provision. It is pertinent
to highlight that Section 2(61) of the JJ Act prescribes that expressions
not deﬁned, would have the same meaning as in other enactments.
158. As far as the learned Chief Justice’s comment with respect to
this court not reading down ‘marital’ or striking down Regulation 5(3),
the earlier discussion in Part VIII clariﬁed that there was a conscious
legislative policy while highlighting the interpretation of the term
‘spouse’. At the same time the court recognised the disparate, and even
discriminatory impact, on children of individuals, who formed de facto
1512 SUPREME COURT REPORTS [2023] 16 S.C.R.

families (with their unmarried partner). In our opinion, striking down
the term ‘marital’ under Regulation 5(3) – would likely have unintended
consequences, which cannot be comprehended by the court as it involves
policy considerations. This is the reason for desisting from invalidating
the provision but having left it to the State to take measures to remedy
these impacts.
159. Lastly, a small note of caution is expressed in relation to a
few conclusions of our learned brother Kaul, J. There can hardly be any
dispute of the positive outcomes or the need for a broadly applicable
non-discriminatory law (as elaborated by Kaul, J). However, the wisdom
or unwisdom of such a law, the elements that go into its making are
matters that are not before this Court to comment on. Nor can we
anticipate what would be its content. We are of the opinion that it is not
possible to hold that a positive obligation to enact such a law exists.
We, therefore, expressly place our disagreement with the reasoning of
Kaul, J on this aspect.
160. The known canons of interpretation require the courts to take
any statute and interpret its provisions keeping in mind their contextual
setting. Likewise, the meaning of words have to be understood in the
totality of provisions of the statute. Thus, wherever a word is used,
the overall context of its location plays a role; sometimes, its meaning
changes wherever the context is diﬀerent. We have hence held that the
expressions in the SMA [“wife” and “husband” or “male” and “female”]
cannot, have a uniform meaning, because there is an intended gendered
binary [e.g., male and female] in the speciﬁc enacting provisions. As far
as inter se statutes are concerned, the inexpedience of a singular, gender
neutral meaning is not a possible outcome, as explained previously.
Therefore, it is our considered view, that there is no known interpretive
tool enabling an exercise inter se and in between statutes, as held by
Kaul, J.
161. Undoubtedly, constitutional values endure; they are not
immutable. To the extent it is possible, the statutes may be interpreted
in tune with such evolving values. Yet, statutes are neither ephemeral,
nor their terms transient, and are meant to confer rights, duties, and
obligations – and sometimes impose burdens and sanctions. This means
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that their contents have to be clear and capable of easy interpretation.
The text of the statute therefore must be given meaning – any interpretive
exercise must therefore begin with the text of the enacted law.
162. The gaps and inadequacies outlined earlier by this judgment
result in wide-reaching impacts and concern crucial aspects of everyday
life. Therefore, the respondents and all institutions should take note of
the lived realities of persons across the range of gender identities and
suitably prioritize their needs of social acceptance. There is also need for
a move towards greater acceptance of personal choices and preferences,
and an equal marking of our diﬀerences in all their varied hues.
163. In various countries that have since legislated on same-sex
marriage, the precursor to this regime was often the civil union route.
Known by many names, the concept of civil union enjoys varying rights
and entitlements in diﬀ erent jurisdictions. This was a legal relationship
for unmarried, yet committed couples, who cohabited together and
sought certain rights, and the protection of law. The rights that ﬂowed
were not identical in scope or extent of rights arising from marriage, but
was still an avenue to provide certain limited, but enforceable rights.
In the US, for instance this was rolled out by many state governments,
when same-sex marriage was not legalized by the federal government.
What began as an option for same sex couples, to attain ﬁnancial and
legal partnership (tax beneﬁts, property rights, child adoption in some
jurisdictions, inheritance, etc.) now remains on the statute books for some
states, with which couples who do not want to enter the societal pressures
or institution of marriage, are able to protect their rights. However, many
advocates for LGBTQ rights have strongly opposed civil unions in other
jurisdictions, as oﬀering a ‘second class’ status, in the absence of the
marriage route. Other alternatives available in some of these countries
– the suitability of which have also been subject to criticism of varying
degrees, but includes – domestic partnerships, cohabitation agreements,
common law marriages, etc.
164. This court would be sorely mistaken if we presume what the
queer community – in all its diversity, seeks and lay it out in a formulaic
framework. Many may welcome civil unions as a pragmatic ﬁrst step,
while some may ﬁnd it to be yet another inequitable solution to the feeling
1514 SUPREME COURT REPORTS [2023] 16 S.C.R.

of exclusion that persists in society against this community, and one which
simply repackages the stigmatization felt. Many may desire marriage as
understood in the ‘traditional’ sense to escape their societal realities – a
form of ﬁnancial and social emancipation from opposing natal families, or
diametrically opposite – to assimilate and gain more social acceptance in
their natal families. Yet, others may, as a result of their experience reject
altogether the institution of marriage and all the social obligation and
associations that come with it, but still want legal protection of their rights.
Certainly, what the former group may want, does not hamper or hinder the
latter, in any manner – for it is a choice that they seek. That the state should
facilitate this choice for those who wish to exercise it, is an outcome that
the community may agree upon. Yet, the modalities of how it should play
out, what it will entail, etc. are facets that the State – here the legislature,
and executive – needs to exercise its power in furtherance of. Now whether
this will happen through proactive action of the State itself, or as a result
of sustained public mobilization– is a reality that will play out on India’s
democratic stage, and something only time can tell.
165. The State may choose from a number of policy outcomes; they
may make all marriage and family related laws gender neutral, or they may
create a separate SMA-like statute in gender neutral terms to give the queer
community an avenue for marriage, they may pass an Act creating civil
unions, or a domestic partnership legislation, among many other alternatives.
Another consequence may be that rather than the Union Government,
the State legislatures132 takes action and enacts law or frameworks, in the
absence of a central law. What is certain however, is that in questions of such
polycentric nature – whether social, or political – the court must exercise
restraint and defer to the wisdom of the other branches of the State, which
can undertake wide scale public consultation, consensus building and reﬂect
the will of the people, and be in their best interest. If as a result of this, a law
is enacted that undermines or violates the constitutionally protected rights
of an individual, or a group – no matter how miniscule, their right to seek
redressal from this Court is guaranteed under Article 32.
166. That the petitioners seek, what many of us may deem to be the

132 Entry 5, List III of the Constitution of India.
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normal, or accepted next step in life upon attaining a certain age, and perhaps
take for granted, is not lost on us. Their desire, for social acceptability, in the
manner that has been historically known – through the social recognition that
marriage aﬀords– and the lack of which causes them feeling of exclusion
and hurt, is one that as individuals, especially those donning the robes of
justice, we can certainly have deep empathy with. However, we are deeply
conscious, that no matter how much we empathize with the outcome sought,
the means to arriving at such a destination, must also be legally sound, and
keep intact, the grand architecture of our Constitutional scheme. For if we
throw caution to the wind, we stand the risk of paving the way (wherein
each brick may feel justiﬁed) to untold consequences that we could not have
contemplated. While moulding relief, as a court we must be cognizant that
despite being empowered to see the capabilities of the law in its grand and
majestic formulation, we must not be led aground because we are blinded,
by its glow.
167. The petitions are disposed of in the above terms. Pending
applications (if any) are disposed of.

PAMIDIGHANTAM SRI NARASIMHA, J.
1. I am conscious of the ordeals that arise from a multiplicity of
judicial opinions in cases involving constitutional questions. Yet, I consider
it worthwhile to pen the present opinion, given the signiﬁcant nature of
questions involved. Polyvocality in the exercise of the adjudicatory function
may not necessarily be viewed with discomfort; if complemented by judicial
discipline, it is truly reﬂective of the diversity of judicial thought.
2. The constitutional questions for which we seek answers in the
present set of petitions are two-fold: (a) the status of the right to marry
for LGBTQ+ couples and (b) depending upon the answer to the ﬁrst, the
remedy that must ensue. With respect to the ﬁrst, the petitioners assert that
not only do they have the right to marry under the Constitution, but also that
through an interpretative process such a right must be read into the existing
legislative framework governing marriages. The respondents, oppose both
the foundations upon which the petitioners seek to establish their right, and
at the same time they remind us of the judicial limitations on the issuance
of positive directions for enforcement of such a right.
1516 SUPREME COURT REPORTS [2023] 16 S.C.R.

3. I had the privilege of traversing through the opinions of the learned
Chief Justice, Justice Sanjay Kishan Kaul and Justice Ravindra Bhat. I
am afraid I am unable to agree with the opinions of the Chief Justice and
Justice Kaul. I am in complete agreement with the reasoning given and
conclusions arrived at by Justice Bhat. I will supplement his ﬁndings with
some of my own reasons. Since the broad arguments and submissions have
been succinctly captured in the opinion of the learned Chief Justice, I ﬁnd
no reason to separately enlist them here.
4. At the outset, I will set out my conclusions, which are also in
complete consonance with that of Justice Bhat in his opinion.
a. The question of marriage equality of same sex/LGBTQ+ couples
did not arise for consideration in any of the previous decisions of
this Court, including the decision in Navtej Singh Johar & Ors.
v. Union of India1 and NALSA v. Union of India2. Consequently,
there cannot be a binding precedent on this count. The reasons
for arriving at this conclusion are articulated in the opinion of
Justice Bhat.
b. The rights of LGBTQ+ persons, that have been hitherto
recognized by this Court, are the right to gender identity, sexual
orientation, the right to choose a partner, cohabit and enjoy
physical & mental intimacy. In the exercise of these rights,
they have full freedom from physical threat and from coercive
action, and the State is bound to aﬀord them full protection of
the law in case these rights are in peril.
c. There is no unqualiﬁed right to marriage guaranteed by the
Constitution, that qualiﬁes it as a fundamental freedom. With
respect to this, I agree with the opinion of Justice Bhat, but will
supplement it with some additional reasons.
d. The right to marriage is a statutory right, and to the extent it
is demonstrable, a right ﬂowing from a legally enforceable
customary practice. In the exercise of such a right, statutory or

1 (2018) 10 SCC 1
2 (2014) 5 SCC 438
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1517
OF INDIA [PAMIDIGHANTAM SRI NARASIMHA, J.]

customary, the State is bound to extend the protection of law
to individuals, so that they can exercise their choices without
fear and coercion. This, in my opinion, is the real import of the
decisions in Shaﬁn Jahan v. Asokan K.M.3 and Shakti Vahini v.
Union of India4.
e. The constitutional challenge to the Special Marriage Act, 1954
and the Foreign Marriage Act,1969 must fail, for the reasons
indicated in the opinion of Justice Bhat.
f. Similarly, Justice Bhat also rightly finds the semantic
impossibilities of gender-neutral constructions of the Special
Marriage Act, 1954 and the Foreign Marriage Act,1969. On
both (e) and (f), the opinion of Justice Bhat is exhaustive as to
the reasons, and they need not be supplemented.
g. I ﬁnd that a right to a civil union or an abiding cohabitational
relationship conferring a legally enforceable status cannot be
situated within Part III of the Constitution of India. On this count
too, I agree with the conclusions of Justice Bhat, and supplement
them with my own reasons.
h. I agree with the reasoning and the conclusion of Justice Bhat
with respect to the constitutionality of Regulation 5(3) of the
CARA Regulations, 2020.
Marriage as Social Institution and the Status of the Right to Marry
5. There cannot be any quarrel, in my opinion, that marriage is a social
institution, and that in our country, it is conditioned by culture, religion,
customs and usages. It is a sacrament in some communities, a contract in
some other. State regulation in the form of codiﬁcation, has often reﬂected
the customary and religious moorings of the institution of marriage. An
exercise to identify the purpose of marriage or to ﬁnd its ‘true’ character, is
a pursuit that is as diverse and mystic as the purpose of human existence;
and therefore, is not suited for judicial navigation. But that does not render
the institution meaningless or abstract for those who in their own way
understand and practice it.

3 (2018) 16 SCC 368
4 (2018) 7 SCC 192
1518 SUPREME COURT REPORTS [2023] 16 S.C.R.

6. In India, the multiverse of marriage as a social institution, is
not legally regulated by a singular gravitational ﬁeld. Until the colonial
exercise of codiﬁcation of regulations governing marriage and family
commenced, the rules governing marriage and family, were largely
customary, often rooted in religious practice. This exercise of codiﬁcation,
not always accurate and many a times exclusionary, was the product of the
colonial desire to mould and reimagine our social institutions. However,
what is undeniable is that, impelled by our own social reformers, the
colonial codiﬁcation exercise produced some reformatory legislative
instruments, ushering in some much-needed changes to undo systemic
inequalities. The constitutional project that we committed ourselves to in
the year 1950, sought to recraft some of our social institutions and within
the ﬁrst half decade of the adoption of the Constitution, our indigenous
codiﬁcation and reformation of personal laws regulating marriage and
family was underway.
7. Even when our own constitutional State attempted codiﬁcation and
reform, it left room for customary practices to co-exist, sometimes providing
legislative heft to such customary practices. Section 5(iv)5, section 5(v)6,
section 77, and section 29(2)8 of the Hindu Marriage Act, 1955 are illustrative
in this regard. Similarly, the Special Marriage Act, 1954 in provisos to

5 “5. Conditions for a Hindu marriage. – A marriage may be solemnized between any
two Hindus, if the following conditions are fulﬁlled, namely:
(iv) the parties are not within the degrees of prohibited relationship unless the custom
or usage governing each of them permits of a marriage between the two.”
6 “5. Conditions for a Hindu marriage. – A marriage may be solemnized between any
two Hindus, if the following conditions are fulﬁlled, namely:
(v) the parties are not sapindas of each other, unless the custom or usage governing
each of them permits of a marriage between the two.”
7 “7. Ceremonies for a Hindu marriage.—
(1) A Hindu marriage may be solemnized in accordance with the customary rites
and ceremonies of either party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of
seven steps by the bridegroom and the bride jointly before the sacred ﬁre), the
marriage becomes complete and binding when the seventh step is taken.”
8 29. Savings.—
(2) Nothing contained in this Act shall be deemed to aﬀect any right recognised by
custom or conferred by any special enactment to obtain the dissolution of a Hindu
marriage, whether solemnized before or after the commencement of this Act.”
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1519
OF INDIA [PAMIDIGHANTAM SRI NARASIMHA, J.]

sections 4(d)9 and section 15 (e)10 saves customary practices, without which
the marriage would have been otherwise null and void. Same is the case with
the proviso to section 4(d) of the Foreign Marriage Act, 196911. Legislative
accommodation of customary practices is also reﬂected in section 5 of the
Anand Marriage Act, 190912.
8. The legal regulation of the institution of marriage, as it exists today,
involves regulation of the solemnisation or ceremony of marriage, the choice
of the partner, the number of partners, the qualifying age of marriage despite
having attained majority, conduct within the marriage and conditions for
exit from the marriage.

9 “4. Conditions relating to solemnization of special marriages.―Notwithstanding
anything contained in any other law for the time being in force relating to the
solemnization of marriages, a marriage between any two persons may be solemnized
under this Act, if at the time of the marriage the following conditions are fulﬁlled,
namely:―
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a
marriage between them, such marriage may be solemnized, notwithstanding that they
are within the degrees of prohibited relationship;”
10 15. Registration of marriages celebrated in other forms.―Any marriage celebrated,
whether before or after the commencement of this Act, other than a marriage
solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may
be registered under this Chapter by a Marriage Oﬃcer in the territories to which this
Act extends if the following conditions are fulﬁlled, namely:―
(e) the parties are not within the degrees of prohibited relationship:
Provided that in the case of a marriage celebrated before the commencement of this
Act, this condition shall be subject to any law, custom or usage having the force of law
governing each of them which permits of a marriage between the two”
11 “4. Conditions relating to solemnization of foreign marriages.—A marriage
between parties one of whom at least is a citizen of India may be solemnized under this
Act by or before a Marriage Oﬃcer in a foreign country, if, at the time of the marriage,
the following conditions are fulﬁlled, namely:—
(d) the parties are not within the degrees of prohibited relationship:
Provided that where the personal law or a custom governing at least one of the
parties permits of a marriage between them, such marriage may be solemnized,
notwithstanding that they are within the degrees of prohibited relationship.”
12 5. Non-validation of marriages within prohibited degrees.—Nothing in this
Act shall be deemed to validate any marriage between persons who are related to
each other in any degree of consanguinity or aﬃnity which would, according to the
customary law of the Sikhs, render a marriage between them illegal.”
1520 SUPREME COURT REPORTS [2023] 16 S.C.R.

9. As to ceremonies and solemnisation, section 2 of the Anand Marriage
Act, 190913, section 3(b) of the Parsi Marriage and Divorce Act, 193614,
section 10, 11 & 25 of the Indian Christian Marriage Act, 187215 and section
7 of the Hindu Marriage Act, 1955 explicitly recognize the central role
that religious ceremonies play in solemnisation of marriages. The Muslim
Personal Law (Shariat) Application Act, 193716 clearly saves the application
of personal law to marriages, including the nature of the ceremony. Viewed
in this perspective, the diverse religious practices involved in solemnizing
marriages are undeniable.

13 2. Validity of Anand marriages.—All marriages which may be or may have been
duly solemnized according to the Sikh marriage ceremony called Anand commonly
known as Anand Karaj shall be, and shall be deemed to have been with eﬀect from the
date Of the solemnization or each respectively, good and valid in law.”
14 3. Requisites to validity of Parsi marriages.— (1) No marriage shall be valid if—
(b) such marriage is not solemnized according to the Parsi form of ceremony called
“Ashirvad” by a priest in the presence of two Parsi witnesses other than such priest;”
15 Section 10 of the Act reads:
“10. Time for solemnizing marriage.—Every marriage under this Act shall be
solemnized between the hours of six in the morning and seven in the evening:”
Section 11 reads:
“11. Place for solemnizing marriage.—No Clergyman of the Church of England shall
solemnize a marriage in any place other than a church where worship is generally held
according to the forms of the Church of England, unless there is no such church within
ﬁve miles distance by the shortest road from such place, or unless he has received
a special license authorizing him to do so under the hand and seal of the Anglican
Bishop of the Diocese or his Commissary.”
Section 25 reads:
“25. Solemnization of marriage.—After the issue of the certiﬁcate by the Minister,
marriage may be solemnized between the persons therein described according to such
form or ceremony as the Minister thinks ﬁt to adopt:
Provided that the marriage be solemnized in the presence of at least two witnesses
besides the Minister.”
16 Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 reads:
“2. Application of Personal Law to Muslims.—Notwithstanding any custom or
usage to the contrary, in all questions (save questions relating to agricultural land)
regarding intestate succession, special property of females, including personal
properly inherited or obtained under contract or gift or any other provision of Personal
Law. marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and
mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and
wakfs (other than charities and charitable institutions and charitable and religious
endowments) the rule of decision in cases where the parties are Muslims shall be the
Muslim Personal Law (Shariat).”
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1521
OF INDIA [PAMIDIGHANTAM SRI NARASIMHA, J.]

10. The choice of the partner is not absolute and is subject to two-
dimensional regulations: (i) minimum age of partners and (ii) the exclusions
as to prohibited degrees. There is a diﬀerential minimum age prescription
for male and female partners in most legislations. Thus males, who have
otherwise attained the age of majority, cannot marry under these enactments,
even though they exercise many other statutory and constitutional rights
when they attain the age of eighteen.
11. The concept of prohibited degrees of relationship, is statutorily
engraved in section 5 of the Anand Marriage Act, 1909, section 3(a) of the
Parsi Marriage and Divorce Act, 193617, section 5(iv) and (v) of the Hindu
Marriage Act, 1955 and sections 4(d) & section 15(e) of the Special Marriage
Act, 1954. Persons who have attained the requisite age of marriage under
these enactments, have their choice and consenting capacities restricted,
to this extent.
12. In my considered opinion, the institutional space of marriage
is conditioned and occupied synchronously by legislative interventions,
customary practises, and religious beliefs. The extant legislative
accommodation of customary and religious practices is not gratuitous and
is to some extent conditioned by the right to religion and the right to culture,
constitutionally sanctiﬁed in Articles 25 and Article 29 of the Constitution
of India. This synchronously occupied institutional space of marriage, is
a product of our social and constitutional realities, and therefore, in my
opinion, comparative judicial perspectives oﬀer little assistance. Given
this nature of marriage as an institution, the right to choose a spouse and
the right of a consenting couple to be recognized within the institution of
marriage, cannot but be said to be restricted.
13. The learned Chief Justice has opined that marriage may not
attain the social and legal signiﬁcance it currently has if the State had not
recognised and regulated it through law. It is further opined that marriage
has attained signiﬁcance because of the beneﬁts which are realised through
it. In this context, it is necessary to recount that until the post constitutional
codiﬁcation of laws relating to marriage and divorce, there was no signiﬁcant

17 3. Requisites to validity of Parsi marriages.- [(1)] No marriage shall be valid if-
(a) the contracting parties are related to each other in any of the degrees of
consanguinity or aﬃnity set forth in Schedule I; or
1522 SUPREME COURT REPORTS [2023] 16 S.C.R.

State intervention on customary laws relating to marriage. Even today,
much of the Mohammedan law of marriage is governed by religious texts
and customs and there is hardly any State intervention. The Sixth Schedule
areas under the Constitution are largely governed by customary laws of
marriage. That the State has chosen to regulate the institutional space of
marriage and even if such regulation occupies the space in toto, by itself
does not imply that marriage attained signiﬁcance due to State recognition.
14. I must hasten to add that the aforesaid recollection of legislative
illustrations was with a view to demonstrate the cultural relativism involved
in the idea of marriage. No singular right can inform unimpeded entry to and
unregulated exit from the institution of marriage; for that would disassociate
the institution of marriage from its social context. The claim of the right to
marry, de-hors the existing statutory framework, is nothing but a claim to create
a legally and socially enforceable status. It is not a claim against criminalisation
of sexual conduct, which was the issue in Navtej (supra). It is nothing but a
prayer of mandamus to create the necessary legislative and policy space for
recognition of relationships as marriages in the eyes of law. The prayer to
recognize such a right is not one that expects the State to desist from pursuing
an act, but one which will place positive obligations upon the State to erect
new laws, or at least amend existing laws. I say laws, because marriage laws
do not stand in isolation, they interact in multifarious ways with succession,
inheritance and adoption laws, to name a few. The content of the right claimed
by the Petitioners is such that it clearly places positive legislative obligations
on the State, and therefore, cannot be acceded to. That there cannot be a
mandamus to amend or enact laws, is such a deeply entrenched constitutional
aphorism, which need not be burdened by quotational jurisprudence. We are
afraid, that the creation of social institutions and consequent re-ordering of
societal relationships are ‘polycentric decisions’, which have “multiplicity of
variable and interlocking factors, decisions on each one of which presupposes
a decision on all others”18, decisions that cannot be rendered by one stroke
of the judicial gavel.
Re: The impermissibility of the creation of a right to a union or an
abiding cohabitational relationship

18 Indian Ex-Service Movement v. Union of India, (2022) 7 SCC 323, 68.
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR. v. UNION 1523
OF INDIA [PAMIDIGHANTAM SRI NARASIMHA, J.]

15. Having concluded that there exists no unqualiﬁed right to marry,
in the ordinary course, no occasion would have arisen for any further
deliberation. However, as the learned Chief Justice, in his opinion, has
arrived at a conclusion that there exists a constitutional right to a union or
an abiding cohabitational relationship, it is necessary for me to express my
opinion on this new construction.
16. The learned Chief Justice locates components of this right to union
or an abiding cohabitational relationship under Article 19(1)(a), Article
19(1)(c), Article 19(1)(e), Article 21 and Article 25 of the Constitution. In
my opinion, it would not be constitutionally permissible to identify a right
to a union or an abiding cohabitational relationship mirroring the institution
of marriage. The learned Chief Justice identiﬁes ‘tangible’ and ‘intangible’
beneﬁts (bouquet of entitlements) that arise from state recognition and
regulation of marriages. The Chief Justice further opines that the right to
marriage is not fundamental. However, it is these very tangible and intangible
beneﬁts, the denial of which, according to the learned Chief Justice must
inform the reading of a constitutional right to an abiding cohabitational
union. In other words, the beneﬁts of marriage, however fundamental to
a fulﬁlling life do not make marriage itself a fundamental right, but they
render the right to an abiding cohabitational union fundamental. I ﬁnd it
diﬃcult to reconcile these.
17. The learned Chief Justice opines that “it is insuﬃcient if persons
have the ability and freedom to form relationships unregulated by the
State. For the full enjoyment of such relationships, it is necessary that the
State accord recognition to such relationships. Thus, the right to enter
into a union includes the right to associate with a partner of one’s choice,
according recognition to the association, and ensuring that there is no
denial of access to basic goods and services is crucial to achieve the goal
of self-development.” The opinion of the Chief Justice, thereafter, classiﬁes
that status of two persons in relationship: (a) ‘relationships’ which do not
have legal consequences, (b) ‘unions’ which have legal consequences and
marriages. In my considered opinion, it is in positively mandating the
State to grant recognition or legal status to ‘unions’ from which beneﬁts
will ﬂow, that the doctrine of separation of powers is violated. The framing
of a positive right and the positive entitlements which ﬂow therefrom,
essentially require the State to regulate such unions and beneﬁts. In my
1524 SUPREME COURT REPORTS [2023] 16 S.C.R.

opinion, the direction in eﬀect, is to amend existing statutory frameworks,
if not to legislate afresh.
18. Additionally, the opinion of the learned Chief Justice, situates
the right to choice of a partner and right to legal recognition of an abiding
cohabitational relationship within Article 25 of the Constitution of India.
Emphasis is placed on the term “freedom of conscience” which is placed
alongside the right to freely profess, practice and propagate religion. The
opinion situates in this freedom of conscience, the right not only to judge
the moral quality of one’s own action but also to act upon it. If that were
permissible under Article 25, then the textual enumeration of freedoms in
Article 19 become redundant, since these freedoms can be claimed to be
actions on the basis of one’s own moral judgment. I ﬁnd it diﬃcult to agree
with such a reading of Article 25.
19. I am not oblivious to the concerns of the LGBTQ+ partners with
respect to denial of access to certain beneﬁts and privileges that are otherwise
available only to married couples. The general statutory scheme for the
ﬂow of beneﬁts gratuitous or earned; property or compensation; leave or
compassionate appointment, proceed on a certain deﬁnitional understanding
of partner, dependant, caregiver, and family. In that deﬁnitional understanding,
it is no doubt true, that certain classes of individuals, same-sex partners,
live-in relationships and non-intimate care givers including siblings are
left out. The impact of some of these deﬁnitions is iniquitous and in some
cases discriminatory. The policy considerations and legislative frameworks
underlying these deﬁnitional contexts are too diverse to be captured and
evaluated within a singular judicial proceeding. I am of the ﬁrm belief that
a review of the impact of legislative framework on the ﬂow of such beneﬁts
requires a deliberative and consultative exercise, which exercise the legislature
and executive are constitutionally suited, and tasked, to undertake.
20. For the reasons stated above, and in view of the preceding
paragraph, the writ petitions are disposed of.

Headnotes prepared by: Petitions disposed of.
Bibhuti Bhushan Bose
Assisted by : Neha Sharma, LCRA

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