Important highlights of SC Judgment Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

 1. No Fundamental Right To Marry.

The Supreme Court unanimously held that there was not fundamental, unequivocal right to marry in India.

2. On Striking Down The Special Marriage Act & Allied Laws

Another point on which the entire bench agreed was to not strike or read the Special Marriage Act (SMA) and its allied laws down.

3. On Rights Of Transgender Persons To Marry

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Important Notes on family law (Part 7)

 

1) Findings of Supreme court in the case of "Supriyo Vs Union of India" on right to marry by same sex couple

https://www.lawweb.in/2023/12/findings-of-supreme-court-in-case-of.html

2) Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

https://www.lawweb.in/2023/12/case-note-supriyo-supriya-chakraborty.html

3) Notes on Uniform civil Code in India

https://www.lawweb.in/2023/12/notes-on-uniform-civil-code-in-india.html

4) Whether Wife can claim Right Of Residence in immovable property Belonging to relatives Of Husband?

We, thus, are of the opinion that the

interpretation of definition of shared household as put

by this Court in S.R. Batra Vs. Taruna Batra (supra) is

not correct interpretation and the said judgment does

not lay down the correct law.{Para 64}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2483 of 2020

SATISH CHANDER AHUJA Vs  SNEHA AHUJA 

Author: ASHOK BHUSHAN, J.

Dated: 15-10-2020

https://www.lawweb.in/2020/10/whether-wife-can-claim-right-of.html

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Case Note: Supriyo @ Supriya Chakraborty & Anr. v. Union of India (2023 INSC 920)

Findings of the court

Dr. D.Y. Chandrachud, C.J.I.

(i) The following were conclusions of this court:

a. This Court was vested with the authority to hear this case. Under Article 32, this Court had 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 was not urban or elite. c. There was 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 relationship f. The issue of whether the Constitution recognizes the right to marry did not arise before this Court in Justice KS Puttaswamy, Shafin Jahan, and Shakti Vahini

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 could not either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court could not read words into the provisions of 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 could not be restricted based on sexual orientation. Such a restriction will be violative of Article 15. Thus, this freedom was available to all persons regardless of gender identity or sexual orientation

l. The decisions in Navtej and Justice KS Puttaswamy 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

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 was ultra vires the JJ Act, Articles 14, and 15. Regulation 5(3) was 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 was 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 was 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. This court 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 were 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 The Committee shall in terms of the exposition in this judgment consider the following: (1). 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 (2). In terms of the decision in Common Cause v. Union of India, as modified by Common Cause v. Union of India, 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. [340]

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 1011 of 2022, Writ Petition (Civil) No. 93 of 2023,

Decided On: 17.10.2023

Supriyo and Ors. Vs. Union of India (UOI)

Hon'ble Judges/Coram: Dr. D.Y. Chandrachud, C.J.I., Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, JJ.

Citation: MANU/SC/1155/2023,2023/INSC/920.

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Findings of Supreme court in the case of "Supriyo Vs Union of India" on right to marry by same sex couple

 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 Special Marriage Act(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 such as the Indian Succession Act and the Hindu Succession Act 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;

In the Supreme Court of India

(Before Dr D.Y. Chandrachud, C.J. and Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, JJ.)

Writ Petition (Civil) No. 1011 of 2022

Supriyo alias Supriya Chakraborty and Another  Vs Union of India 

Decided on: October 17, 2023

Citation:2023 SCC OnLine SC 1348,

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Orissa HC: Live-in relationship by Same-sex couple is permissible under Domestic violence Act and woman in the said relationship is entitled to get the protection of the said Act

Thus, taking into consideration the aforesaid authoritative

pronouncements of the Hon’ble Supreme Court, there is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of

his choice even though such person may belong to the same gender as the  petitioner.

Therefore, we allow the writ application (criminal) and direct that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners.  The lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.

ORISSA HIGH COURT: CUTTACK

Writ Petition (Criminal) No. 57 of 2020

Chinmayee Jena @ Sonu Krishna Jena Vs State of Odisha 

P R E S E N T

 MR. JUSTICE S.K.MISHRA

AND

 MISS JUSTICE SAVITRI RATHO

Date of Judgment – 24.08.2020

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