A Case for Marriage Equality
In India, the fundamental right to marry is not explicitly mentioned as such in the Constitution, but the right to marry is encompassed under various fundamental rights and legal provisions. Several fundamental rights and legal principles protect the right to marry, and they are as follows:
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Right to Equality (Article 14): This fundamental right ensures that all citizens are equal before the law and that there shall be no discrimination on the basis of religion, race, caste, sex, or place of birth. This right ensures that individuals have the freedom to marry someone of their choice, regardless of their backgrounds.
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Right to Life and Personal Liberty (Article 21): Article 21 of the Indian Constitution protects an individual's right to life and personal liberty. This includes the right to choose one's life partner and marry freely, without interference from the state or others.
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Freedom of Conscience and Religion (Article 25-28): These articles protect an individual's right to practice, profess, and propagate their religion. It includes the right to marry within one's own religious community.
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Court Verdict
Majority View: Agreeing with the CJI on this issue, the majority view differentiated between what is “fundamentally important to an individual” from an enforceable fundamental right. “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,” Justice Bhat said.
Minority View: CJI Chandrachud did not agree with the petitioners’ argument that marriage is an inherent right that the state only regulates. The minority view stated that marriage may not have attained the social and legal significance it currently has, if the state had not regulated it through law
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The Special Marriage Act, 1954 is an important legal framework in India that governs civil marriages. It provides a means for individuals of different religions, castes, or backgrounds to marry each other without converting to a specific religion or undergoing religious ceremonies. Here's an interpretation of the key aspects of the Special Marriage Act:
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Applicability: The Special Marriage Act is applicable to all Indian citizens, whether residing in India or abroad. It is especially significant for couples who wish to have a secular, non-religious, or interfaith marriage.
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Eligibility: To be eligible for marriage under this act, the following conditions must be met:
- Both parties should be of marriageable age (21 years for males and 18 years for females).
- Neither party should have a spouse living.
- Neither party should be subject to unsoundness of mind or incapable of giving valid consent.
- Both parties should not be within the prohibited degrees of relationship.
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Notice of Intended Marriage: One of the unique features of the Special Marriage Act is that it requires a notice of intended marriage to be filed with the Marriage Officer. The notice is usually published, and objections from the public are invited. This is done to ensure that the marriage is not in violation of any of the conditions mentioned above.
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Court Verdict
Majority View: While arriving at the same conclusion, Justice Bhat stated that the court could not interpret the SMA to include same-sex couples since the objective of the legislation is not to include same-sex couples within the realm of marriage.
Minority View: On the expansive reading, CJI Chandrachud said the court could not allow that, because it would “in effect be entering into the realm of the legislature”. If the court were to instead grant the second option to read down the SMA to the extent that it is gender restrictive, “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.”
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Laws related to adoption by queer couples vary from country to country and even within different regions of the same country. As of my last knowledge update in September 2021, I can provide some general information on this topic, but I recommend checking the most recent laws and regulations in your specific jurisdiction for the most up-to-date information.
In many countries, including some states in the United States, Canada, the United Kingdom, and other nations, adoption laws have been updated to be more inclusive and allow same-sex couples, including queer couples, to adopt children. These legal changes have come about as a result of recognizing the fundamental principle of nondiscrimination and equal rights.
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Court Verdict Majority View: The majority view largely agreed with the discriminatory aspects of preventing queer couples from adopting children. Justice Bhat termed this as having the “most visible” discriminatory impact on queer couples, and in principle agreed that a couple “tied together in marriage are not a ‘morally superior choice’, or per se make better parents”. Minority View: The CJI in his opinion struck down certain CARA regulations on the grounds that the legislation’s object is not to 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,” |
The halfway approach of recognising civil unions for queer couples was debated during the hearing. Before full marriage rights were recognised for same-sex couples by the US Supreme Court, several states had allowed civil unions.
However, the petitioners argued that civil unions are not an equal alternative to the legal and social institution of marriage, and “relegating non-heterosexual relationships to civil unions would send the queer community a message that their relationships were inferior to those of heterosexual couples
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Court Verdict Majority View: Justice Bhat disagreed with the view that the court can prescribe a “choice” of civil unions to queer couples. The majority opinion said that the state should facilitate this choice for those who wish to exercise it, is an outcome that the community may agree upon. Minority View: The CJI located the right to form intimate associations within the fundamental right to freedom of speech and expression. The CJI stated that for this right to have “real meaning”, the state must recognise “a bouquet of entitlements which flow from an abiding relationship of this kind”. The minority view noted Solicitor General Tushar Mehta’s statement that a committee chaired by the Cabinet Secretary would be constituted to set out the rights which would be available to queer couples in unions |
