Supriyo @ Supriya Chakraborty & Anr. vs. Union of India 2023 


Supriyo @ Supriya Chakraborty & Anr. vs. Union of India 2023 

Case Citation W.P.(C) No. 1011/2022

Author : Ruby, 4th year CMR law college 

Bench Strength : 5

  • D.Y. Chandrachud CJI, 
  • S.K. Kaul J, 
  • S.R. Bhat J, 
  • Hima Kohli J, 
  • P.S. Narasimha J


Petitioners: Supriyo Chakraborty, Abhay Dang, Parth Phiroze Mehrotra, Uday Raj Anand

Lawyers: Neeraj Kishan Kaul, Menaka Guruswamy, Jayna Kothari, Saurabh Kirpal, Arundhati Katju, Karuna Nundy, Priya Puri, Shristi Borthakur, Mukul Rohatgi

Respondents: Union of India

Lawyers: Tushar Mehta, Solicitor General; R. Venkataramani, Attorney General; Rakesh Dwivedi, Sr. Adv; Kapil Sibal, Sr. Adv.


The Supreme Court of India delivered a historic decision in the matter of Supriyo @ Supriya Chakraborty & Anr. v. Union of India on October 17, 2023. In this case, two same-sex couples filed a writ petition to have their marriages recognized legally in India. The petitioners contested the legality of Section 4(c) of the Special Marriage Act, 1954, claiming that it discriminates against same-sex couples by preventing them from receiving retirement benefits, employment opportunities, adoption, and surrogacy.


The right to marry is not specifically acknowledged as a fundamental right in the Indian Constitution. That does not, however, rule out the prospect of it becoming into a right protected by the constitution. The right to health, education, and other rights are instances of penumbral rights incorporated into the existing provisions of the Constitution, which has historically been construed broadly. 

A progressive and revolutionary jurisprudence had been formed by the Supreme Court with regard to the right to marriage and choice of partner. Beginning with the 2006 decision of Lata Singh v. Union of India, the Supreme Court ruled that the petitioner was free to select her spouse and that intercaste marriages are not illegal. In Justice KS Puttaswamy (retd) v. Union of India, the fundamental right to privacy under Article 21 was upheld, but it was also noted that an individual’s right to privacy and dignity extends to important marital decisions. This was also the ruling of the Apex Court in Shakti Vahini v. Union of India. According to the ruling, selecting life partners amicably is an expression of the freedom of choice that is protected by Articles 19 and 21 of the Constitution. Thus, the Court held in Shafin Jahan v. K.M. Asokan that one of the essential elements of Article 21 is the freedom to marry the person of one’s choosing. This right cannot be restricted until a just and reasonable law is passed. 

Shafin Jahan’s decision in cases such as Laxmibai Chandaragi B. v. State of Karnataka hinged on his assertion that Article 21 guarantees the freedom to marry the person of one’s choosing. The Indian Penal Code, 1860’s Section 377 was struck down by the Supreme Court in the historic decision of Navtej Singh Johar v. Union of India, decriminalizing homosexuality. The Court made it clear that engaging in consenting, private same-sex acts with other adults is a crucial component of one’s right to privacy. The Court did not, however, consider how these rights might be applied in public domains, such as marriage rights. Nevertheless, the Court did draw support for the notions of sexual autonomy and the right to freely select a life partner from the cases of Shafin Jahan and Shakti Vahini. In addition to these historical examples, India is a party to the Universal Declaration of Human Rights (UDHR). According to Article 16(1) of the UDHR, 1948, “Men and women of full age have the right to marry and to found a family, without any limitation due to race, nationality, or religion.” It acknowledges that getting married is a human right.  The International Covenant on Civil and Political Rights (ICCPR) also upholds this right in Article 23(2). 


  • Two same-sex couples, Supriyo Chakraborty and Abhay Dang, filed a writ petition on November 14, 2022, seeking legal recognition of same-sex marriages in India. 
  • The petition challenged Section 4(c) of the Special Marriage Act, 1954, which prohibits marriage between persons of the same sex. 
  • The petitioners argued that the right to marry an individual of one’s own choice falls under Articles 14, 15, 19, 21, and 25 of the Indian Constitution, and any prohibition or segregation, as consolidated in Section 4(c) of the SMA, is ultra vires the Constitution. 
  • The petitioners contended that the denial of their entitlement to marry violates Articles 14, 15, 19, 21, and 25 of the Constitution. 
  • Following the case, a number of petitioners filed applications seeking the right of LGBTQIA+ couples to marry before the nation’s High Courts. The recognition of the “right to marry” as a fundamental right that should apply to non-heterosexual couples was the main point of contention in this case.


Whether the denial of a fundamental right to marry for queer couples amounts to a violation of their right to privacy and dignity?


  • Arguments by Petitioner

The petitioners argue that since the Supreme Court has already recognized the right to dignity, equality, and privacy as fundamental rights for LGBTQIA+ individuals, granting them the right to marry is a logical extension of these rights. Their arguments include:

  1. LGBTQIA+ individuals should have the same right to liberty and freedom to marry as anyone else, as guaranteed by Articles 19 and 21 of the Constitution.
  2. The Special Marriage Act, 1954, which prohibits same-sex marriage, violates these fundamental rights and constitutes discrimination based on sexual orientation.
  3. Denying the right to marry to same-sex couples lacks any legitimate state interest.
  4. Allowing same-sex marriage aligns with the nation’s “constitutional morality” and reflects a pluralistic and inclusive society.
  5. Reading the Special Marriages Act, 1954, in harmony with the Indian Constitution suggests that same-sex marriages are already permitted
  • Arguments by respondent 

The respondents’ counterarguments to the petitioners can be summarized as follows:

  1. The Special Marriage Act, 1954, is not an independent law but rather a subset of general marriage laws. Since procreation is a fundamental aspect of marriage, a non-heterosexual union cannot be considered a marriage.
  2. The unconstitutionality of the Special Marriage Act, 1954, cannot be questioned because it was formulated before the existence of non-heterosexual unions.
  3. Courts should not delve into policy-making by granting marriage rights to non-heterosexual couples. Doing so would either create new laws or necessitate the redesign of existing ones.
  4. While Article 19 addresses personal rights, no specific constitutional provision guarantees the right to marry or form unions.
  5. The State is not obligated to recognize all types of relationships; heterosexual relationships are crucial for societal stability


In this case, a Five-Judge bench unanimously held that the right to marriage is not a fundamental right. They distinguished between the right to choose a partner and the right to marry. While the former is fundamental, only the State can create a law allowing queer couples to marry. The majority bench clarified that there’s no obligation for the State to legally recognize civil unions.

The Court discussed marriage’s legal and societal implications. Benefits from marriage result from State recognition, not inherent nature. To grant similar benefits to queer couples, an act of parliament is necessary. The Court upheld LGBTQIA+ individuals’ right to privacy, choice, and autonomy under Articles 15 and 21. While recognizing queerness, it emphasized unrestricted union choices. However, the majority judgment didn’t extend privacy, autonomy, and dignity to LGBTQIA+ civil unions.

Regarding the Special Marriage Act (SMA) and Foreign Marriage Act (FMA), the Court recognized transgender and intersex persons in heterosexual relationships can marry under these laws. Marital aspects reflect constitutional values, including human dignity and self-determination. Everyone has the right to sexual privacy and self-expression. The Court upheld the constitutional validity of these provisions, including transgender and intersex people.

In a 3:2 verdict, the Court clarified that Articles 19, 21, and 25 don’t obligate the State to recognize civil unions comparable to marriage. The majority reaffirmed the right to choose, cohabit, and enjoy intimacy but didn’t mandate State recognition for LGBTQIA+ unions. The dissenting opinion argued for democratizing private spaces and extending civil union rights to all, regardless of sexual orientation and gender.


The recent Supreme Court judgment dealt a significant blow to the LGBTQIA+ community’s fight for marriage equality in India. By ruling that the right to marry isn’t fundamental but rather a statutory provision, the Court has left the fate of same-sex marriages in the hands of lawmakers.

The Court’s reasoning hinged on distinguishing between the right to choose a partner (previously recognized as fundamental) and the right to marry (not constitutionally guaranteed). Unfortunately, this distinction overlooks the dignity and autonomy of LGBTQIA+ individuals who seek to formalize their relationships through marriage. By relegating marriage rights to statutory law, the Court effectively shifted the responsibility to the legislature.

This decision also underscores the judiciary’s limitations in driving social change. While the Court has championed LGBTQIA+ rights in landmark cases like Navtej Singh Johar, it acknowledges that legalizing same-sex marriages ultimately requires legislative action. The emotional impact on affected couples is profound, as they grapple with the reality that their love remains unrecognized by the law. 


The Supreme Court’s judgment in Supriyo Supriya Chakraborty & Anr. v. Union of India represents a significant setback for the LGBTQIA+ community’s fight for marriage equality in India. By ruling that the right to marry is not a fundamental right, the Court has placed the onus on the legislature to enact laws recognizing same-sex marriages.

While the Court’s reasoning is legally sound, it fails to fully recognize the inherent dignity and autonomy of LGBTQIA+ individuals in choosing to formalize their relationships through marriage. The decision highlights the limitations of the judiciary in effecting social change on issues of this magnitude, and underscores the need for proactive legislative action to ensure the equal treatment of all individuals, regardless of their sexual orientation or gender identity.

The fight for marriage equality in India is far from over, and the LGBTQIA+ community and its allies will undoubtedly continue to advocate for legislative reforms to recognize the fundamental right of all individuals to marry the partner of their choice.


  1. What was the main matter that the Supreme Court decided to consider in this case?

The first question the Supreme Court considered was whether same-sex couples have an unalienable right to marry under the Indian Constitution. The Court was required to decide whether the Special Marriage Act of 1954’s ban on same-sex unions was unconstitutional.

  1. What decision on the right to marry was made by the Supreme Court?

According to the Supreme Court, marriage is not a basic right guaranteed by the Indian Constitution. The Court decided that the ability to marry is a statutory right that the State may control by passing laws. The 1954 Special Marriage Act’s constitutionality was maintained by the court, which concluded that same-sex marriages are not unfairly discriminated against by its provisions.

  1. How will the Supreme Court’s ruling affect the LGBTQIA+ community’s efforts to secure marriage equality in India?

For the LGBTQIA+ community, the Supreme Court’s ruling marks a major blow in their struggle for marriage equality in India. The Court has put the onus of passing legislation recognizing same-sex marriages on the legislature after holding that the right to marry is not a fundamental right. This implies that the government’s political will and the legislative process will ultimately determine whether or not same-sex weddings are recognized.

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