SC rules out legal status for same-sex marriage and adoption, but defends queer rights

NEW DELHI: In a big setback to gay rights activists, the Supreme Court on Tuesday refused to accord legal recognition to same-sex marriage, saying that there was 'no unqualified right' to marriage except those that are recognised by law.

On May 11, a five-judge constitution bench headed by Chief Justice D Y Chandrachud and including Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha, reserved its verdict on the pleas after a marathon hearing of 10 days.

Agreeing unanimously that one's sexual orientation cannot decide the capability or suitability of being adoptive parents, the Supreme Court in a 3:2 split verdict the SC also held as valid the existing regulations that deny unmarried couples, including queer, the right to adopt a child as a couple.

Although three judges of the bench disagreed with the Chief Justice on adoption rights for LGBTQIA people but agreed that the Special Marriage Act, 1956 (SMA) cannot be interpreted in such a manner so as to enable marriage between queer persons. The judges were however unanimous in their opinion holding that queerness is a natural phenomenon and not an 'urban or elite' occurrence.

Few of the petitioners in the case had urged the apex court to use its plenary power, "prestige and moral authority" to push the society to acknowledge such a union which would ensure LGBTQIA++ lead a "dignified" life like heterosexuals. LGBTQIA++ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.

During the long hearings, advocates for the petitioners including Abhishek Manu Singhvi, Raju Ramachandran, Anand Grover, Mukul Rohatgi, Geeta Luthra, KV Viswanathan, Menaka Guruswamy and Saurabh Kirpal, stressed on the equality rights of the LGBTQIA community and pushed to acknowledge such a union which would ensure LGBTQIA lead a dignified life just like the heterosexuals in the society.

The centre had however opposed the pleas contending that the legislative policy of India has consciously validated a union between a biological man and a biological woman only. Centre however informed the top court it would constitute a committee headed by the cabinet secretary to examine administrative steps that could be taken to address genuine concerns of same-sex couples although it would not look into the issue of legalising their marriage.


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