The Supreme Court on Tuesday delivered its judgment on same-sex marriage and ruled that for LGBTQIA+ couples there is no unqualified right to marriage and that conferring legal status to civil union can only be through enacted law.
During the hearing, Chief Justice of India DY Chandrachud said that the right to enter into a union cannot be restricted based on sexual orientation, adding that transgender persons in heterosexual relationships have the right to marry under the existing laws including personal laws. Unmarried couples, including queer couples, can jointly adopt a child.
The apex court also directed to police not to force queer persons to return to their natal family. It also asked police to conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.
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"There shall be no harassment to the queer community by summoning them to police station solely to enquire about their sexual identity," CJI said.
"To imagine queer as existing only in urban spaces would be like erasing them, queerness can be regardless of one's caste or class," the court observed.
The CJI said it should be ensured that there is no discrimination in access to goods and services for the queer community. There is a need to sensitize the public about queer rights. The Union and state Governments must create a hotline for the queer community to prevent harassment. The government must create safe houses for queer couples. The government also must ensure inter-sex children are not forced to undergo operations.
The CJI said that it should be ensured that no person shall be forced to undergo any hormonal therapy. Queer is a natural phenomenon known to India for ages. It is neither urban or elitist. Marriage is not static. Supreme Court cannot strike down the Special Marriage Act or read words into the Act due to the institutional limitations. Failure of the State to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination.
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On the adoption of children by queer couples, the CJI in his judgment said, unmarried couples, including queer couples, can jointly adopt a child. The Union Government, State Government, and Union Territories shall not discriminate against the right of the queer community to enter into union.
The CJI directed the Union Government to constitute a committee to decide the rights and entitlements of persons in queer unions. The Committee shall consider including queer couples as a family in ration cards, enabling queer couples to nominate for a joint bank account, rights flowing from a pension, gratuity etc. The Committee report is to be looked at the Union Government level.
(With inputs from agency)