SUPRIYO @ SUPRIYA CHAKRABORTY & ANR versus UNION OF INDIA

Citation: [2023] 16 S.C.R. 1209 · Decided: 17-10-2023 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Disposed off

Cited by 2 judgment(s) · cites 111 · see the full citation network in Lexace

Judgment (excerpt)

[2023] 16 S.C.R. 1209 : 2023 INSC 920
1209
CASE DETAILS
SUPRIYO @ SUPRIYA CHAKRABORTY & ANR.
v.
UNION OF INDIA
(Writ Petition (Civil) No. 1011 of 2022)
OCTOBER 17, 2023
[DR. DHANANJAYA Y CHANDRACHUD, CJI, 
SANJAY KISHAN KAUL, S. RAVINDRA BHAT, HIMA KOHLI 
AND PAMIDIGHANTAM SRI NARASIMHA, JJ.]
HEADNOTES
Issues for consideration: The issues were primarily two-fold: (a) the 
status of the right to marry for LGBTQ+ couples and (b) depending upon 
the answer to the fi rst, the remedy that must ensue. 
The petitioners (members of LGBTQ community)asserted that 
marriage is an evolving social institution, capable of embracing the union 
of two willing non-heterosexual, queer or LGBTQ+ (used interchangeably) 
individuals and necessitating state recognition. On the other, the respondents 
asserted that the institution of marriage rests on certain constant and 
unchanging premises, the most prominent of which is that it is a heterosexual 
union. The common ground on which the petitioners claimed relief was 
that LGBTQ+ persons are entitled to solemnize and register their marriage 
– in other words, they claimed a right to legal recognition of their unions 
within the marriage fold. The petitioners relied on fundamental rights to 
equality and non-discrimination, of dignity and autonomy and of expression 
and association, and specifi cally, most petitioners focused on Section 4(c) 
of the Special Marriage Act, 1954 (SMA) as well as the fi rst and second 
schedules thereof, to state that particular references to “husband” or “wife” 
in its provisions are to be read “down”, and a neutral expression needs to 
substituted, instead. The issue was whether the Special Marriage Act, 1954 
is violative of Articles 14, 15, 19, 21, and 25 of the Constitution insofar as 
it does not provide for the solemnization of marriage between same-sex, 
gender non-conforming or LGBTQ couples. 
Ed. Note: Separate judgments were pronounced by Hon’ble Dr. Dhananjaya Y. Chandrachud, 
Chief Justice of India, Hon’ble Mr. Justice Sanjay Kishan Kaul, Hon’ble Mr. Justice S. 
Ravindra Bhat (on behalf of himself and Hon’ble Ms. Justice Hima Kohli) and Hon’ble Mr. 
Justice Pamidighantam Sri Narasimha.
 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
1210
Some of the prayers also related to the right of such couples to 
adopt under existing laws in India. The issue was whether Regulations 
5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption 
Regulations framed by the Central Adoption Resource Authority 
(CARA) are unconstitutional and ultra vires the Juvenile Justice (Care 
and Protection of Children) Act, 2015 insofar as they exclude LGBTQ 
couples from joint adoption. 
Also, extensive submissions were advanced on the various forms of 
violence and discrimination that society and the state machinery infl ict upon 
the queer community, and especially queer couples; and directions were 
sought to obviate such violence and discrimination.
Marriage – Conception and signifi cance of – Right to marriage – 
Status of – If a fundamental right – Conferring legal status for union 
or relationship – Prerogative of legislature or court:
Held [per S. Ravindra Bhat, J. (for himself and Hima Kohli, J.)]: 
Marriage as an institution is prior to the State, i.e., it precedes it – The status 
is still, not one that is conferred by the State (unlike the license regime in 
the US) – The marriage structure exists, regardless of the State, which the 
latter can utilise or accommodate, but cannot be abolished as a concept – 
Under this view, terms of marriage are set, to a large extent, independently 
of the State – Its source is external to the State – That source defi nes the 
boundaries of marriage – This implies that State power to regulate marriage 
does not sit easy with the idea of marriage as a fundamental right – There is 
no unqualifi ed right to marriage except that recognised by statute including 
space left by custom – Civil marriage or recognition of any such relationship, 
with such status, cannot exist in the absence of statute – An entitlement to 
legal recognition of the right to union – akin to marriage or civil union, or 
conferring legal status upon the parties to the relationship can be only through 
enacted law – A sequitur of this is that the court cannot enjoin or direct the 
creation of such regulatory framework resulting in legal status. [Paras 45, 
47 and 149] – Held (per Pamidighantam Sri Narasimha, J.) (Concurring 
with S. Ravindra Bhat, J.): Marriage is 

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