Author: Ananya Mishra, BA.LLB student at Institute of Law,Nirma University

On January 24, 2020, a gay couple named Nikesh and Sonu filed a petition with the Kerala High Court requesting official recognition of the couple’s marriage. On January 27, 2020, Justice Anu Sivaraman of the Kerala High Court accepted the petition. On September 8, 2020, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani, and G. Oorvas—four members of the sexual and gender minority—filed a petition in the Delhi High Court asking for the legal recognition of marriage. On September 14, 2020, a two-judge Delhi High Court bench made up of Justice Prateek Jalan and Chief Justice D.N. Patel accepted the petition. 

On November 14, 2022 Supriya Chakraborty and Abhay Dang, a gay couple, approached the Supreme Court of India to have their marriage recognized legally. On November 25, 2022, the petition was approved by a two-judge Supreme Court bench consisting of Chief Justice of India D.Y. Chandrachud and Justice Hima Kohli. The petition by another gay couple, Parth Phiroze Mehrotra and Uday Raj Anand was also accepted. 

Chief Justice of India D.Y. Chandrachud, Justice P.S. Narasimha, and Justice J.B. Pardiwala formed the Supreme Court bench. They gave high courts instructions to send nine similar petitions to the Supreme Court for consideration alongside the original petitioners. Eight of the petitions came from the Delhi High Court and one from the Kerala High Court. The Supreme Court accepted 20 related petitions on March 15, 2023, from 52 members of the LGBT and gender minority communities, including 17 couples. 

The majority of petitioners sought recognition of their marital rights under the Special Marriage Act and Foreign Marriage Act.


Full name of the case: Supriyo (Supriya) Chakraborty and Abhay Dang VS Union of India and its secretary, ministry of law and justice and other connected cases. The case is filled under writ petition.

The case was filled on 14th November 2022 and decided on 17th October 2023.

The petitioners consistent of couples and individuals from sexual and gender minority communities request recognition of the right to marry and establish a family based on protection from discrimination etc. under the article 14,15,19,21 and 25 of the Indian constitution:

  • Special marriage act of 1954
  • Hindu marriage act of 1955
  • Foreign marriage act 1969
  1. By upholding the fundamental rights protected by Articles 14, 15, 19, and 21 of the Indian Constitution, declare null and void the notice and objection sections of the Special Marriage Act and the Foreign Marriage Act.23]
  2. Declare that under the Citizenship Act of 1955, a spouse of an Indian citizen or an overseas citizen of India who is of foreign origin and who identifies as a member of a gender minority is eligible to apply for registration as an overseas citizen of India.24]
  3. Declare that by upholding the fundamental rights protected by Articles 14, 15, 19, and 21 of the Indian Constitution, a person may designate anyone in lieu of their “next of kin” under any applicable legislation.

The respondent the union government opposed the request, including the extension of the right to marry and establish a family to sexual and gender minority individuals in India. Arguing that:

  1. The fundamental rights protected by Articles 14, 15, 19, 21, and 25 of the Indian Constitution are not violated by the non-recognition of the right to marry and start a family for members of sexual and gender minority groups.
  2. In accordance with the Directive Principles of State Policy and the Fundamental Duties of the Indian Constitution, legitimate state interests are constitutionally admissible grounds for restricting the legal recognition of marriage.
  3. The Legislature is the only body with the authority to pass legislation pertaining to interpersonal relationships, and it represents the collective knowledge of the country.
  4. A foreign-origin sexual or gender minority spouse of an Indian citizen or Overseas Citizen of India may petition for registration as an Overseas Citizen of India under the Citizenship Act of 1955, as Indian marriage laws do not accept same-sex marriages.
  5. the appeal of adoption restrictions unrelated to same-sex marriage and the notice and objection sections of the Foreign Marriage Act and Special Marriage Act. Consequently, those issues ought to be removed from the current case by the Supreme Court.

The supreme court in the judgement with 3-2 majority denied to give legal recognition to same sex marriage and ordered the union government to form a committee to decide whether certain right should be given to the couple or not.


  • Do members of LGBTQIA+ community have a right to marry? 
  • If the LGBTQIA+ community members have a right to marry, then can Supreme Court make a declaration in this effect and not parliament?
  • Does non-inclusion of queers under Special Marriage Act, 1954 amount to violation of Article 14? 
  • Is section 4(c) of the Special Marriage Act unconstitutional?
  • Does non-recognition of marriage between queers violate their fundamental right to freedom of expression and dignity? 
  • Do queers have the right to choose a partner and enjoy physical intimacy? 
  • Will same-sex marriage have an effect on the existing laws? 
  • Will same sex marriage affect adoption, inheritance, surrogacy etc.?
  • Can unmarried couples including queers adopt a child?
  • Marriage is an institution between heterosexual couples. Can it include queers or same-sex individuals? 
  • Can Special Marriage Act allow marriage between individuals of same sex or when one partner is queer? 
  • Can the words ‘men’ and ‘women’ in the Special Marriage Act be replaced with ‘spouse’ to give queers marriage equality.      


1.Special Marriage Act 1954- The act was passed by the Indian Parliament and permitted marriages between members of different castes, individuals who practice different religions, Indians and foreign nationals, and those who are agnostics. Additionally, marriages that fall under the purview of this act are not subject to personal law. This act treats marriages as a civil contract between the parties. The bride must be 18 years old and the groom must be 21 years old to be legally married. Marriages between people of different castes and religious beliefs would be registered under the Special Marriage Act of 1954 and would not be subject to personal laws, which is pertinent to the current case of legalizing same-sex unions (Supriyo v. Union of India).

2.Section 377 of Indian Penal Code (IPC)- The section penalized oral and anal sex between homosexual couples. But in 2018 a landmark judgement given by supreme court of India in the case of Navtej Singh Johar vs Union of India decriminalized consensual sex between homosexual couples and under nonconsensual of homosexual couples’ minimum imprisonment upto 10 years which can be extended upto life imprisonment. The decision of the supreme court was a landmark improvement in recognition of LBGTQ+ community. 

3.Fundamental Rights under the Constitution of India-

Article 14 – It talks about equality before the law or equal protection of law within the territory.

Article 15- The article prohibits discrimination in any manner. No citizens shall on grounds of race, religion, caste, place of birth, sex or any of them be subject to any liability, disability, restrictions or conditions.

Article 19- The right to freedom of speech and expressions.

Article 21- No person shall be deprived of the right to life and personal liberty except due to the procedure established by law.

Article 25- The article guarantees the freedom of conscience, the freedom to profess, practice, and propagate any religion to all citizens

The court in the present case Supriyo vs Union of India held that non recognition of same sex marriage and their right to have a family does not violate any of the above-mentioned fundamental rights which are guaranteed under the constitution of India.


The 5-judge constitution bench of the Supreme Court pronounced the verdict on Same-sex marriage in the ‘Supriyo Vs Union of India’ case.

The Supreme Court rendered a decision acknowledging the numerous disadvantages that non-heterosexual couples face, but refusing to define these disadvantages in terms of constitutional violations or to provide the petitioners with any other relief than upholding the Union’s ambiguous promise of a “High-Powered Committee.”. The present case, in my opinion, represents a significant regression in the development of fundamental rights jurisprudence in at least three areas: unenumerated rights, positive rights, and permissible classifications. These areas have a great deal of established principles that have been significantly undermined by the court’s emphasis on institutional abstention.

The petitioners contended that the state was unjustly restricting the right to marry for same-sex couples under Section 4 of the SMA. They based their argument on precedent that places marriage in the values of expression, dignity, and autonomy found in Articles 19(1)(a) and 21 of the Constitution. The court dismissed this argument at the outset, ruling that the constitution does not grant any right to marry, so evaluating the constitutionality of denying same-sex couples this right is not necessary.

For an unenumerated right to be considered a fundamental right, it must be owed to the state, at least in part, and its implementation cannot necessitate the development of laws governing non-state entities, this was the reasoning of the Supreme Court. Hence, only Parliament had the authority to make and repeal laws in the country. The judges also acknowledge that customary and religious factors have to be taken into consideration before making a decision.

The proposal that a right substantially intervened with customary and religious restrictions cannot be fundamental is regressive in nature and also marks a setback in the process of ‘democratizing the public sphere’.

The court’s decision on the right to marriage seems to be designed to defeat the petitioner’s case before it even began.


The Supreme Court on 17th October 2023 with a 3-2 majority ruled that there cannot be legal recognition of the same sex marriage.

The five- judge bench constituted of Chief Justice D Y Chandrachud and including Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli, and P S Narasimha in which chief justice D Y Chandrachud said this point:

The constitution guarantee freedom to queer community and they have a right to seek recognition of their union.

Court cannot strike down the provisions of the special marriage act owing to the institutional limitations act as same would fall within their domain of the parliament and legislation.

Transgender persons in heterosexual relationships had the right to marry under the existing laws and personal laws 

Justice Kaul also had the same views as Chief Justice D Y Chandrachud and both were in favour of the same sex marriage.

In contrary justice S Ravindra Bhat said that:

Union shall setup a high-powered committee to examine the rights and benefits to queer committee.

Marriage is a social institution and there could not be an unqualified right to marry which has to be treated as a fundamental right.

If it is agreed that marriage is a social institution, does it follow that any section of the society which wishes for the creation of a like institution can seek relief by court intervention?

Court couldn’t create a legal framework for queer couple and it is for the legislature to do as several factors pertaining to policy to be taken into consideration.  

Justice Hima Kohli and Justice P S Narsimha had the same views and were in against the favour of same sex marriage.

The court decided that a union government committee to be constituted for whether legal rights should be granted to the couple without legal recognition of their relationship as marriage.

The court also stated that the couple has right to cohabit without any threat to violence but the recognition of the marriage is a rather matter of legislation to decide and is not in hands of court.

Leave a Reply

Your email address will not be published. Required fields are marked *