Supreme Court Rejects Same Sex Marriage by 3:2 Vote, but recognizes Right to Cohabitate.

October 18, 2023

At the start of the year, Prime Minister Narendra Modi’s government asserted that granting certain rights to the LGBTQ community is an “urban, elitist view” and that same-sex marriage is not equivalent to the Indian family unit that is traditionally composed of a husband, wife and children.

The apex court of the country released their decision on the legal recognition of same-sex marriages on Tuesday through a majority vote of 3-2. Four judgments were made, as well as several observations.

A petition was lodged claiming that not acknowledging same-sex unions breached the constitutional rights of the LGBTQ community. This prompted the ruling.

The court did not grant same-sex couples the right to marry but did acknowledge their rights.

The outcome of the ruling establishes that Indian citizens are now allowed to participate in same-sex relationships, secured by the Constitution. However, marriage between two people of the same gender is still prohibited.

The five-judge bench headed by Chief Justice DY Chandrachud passed a judgment that stressed the importance of the right to choose a partner in life. This right, Chandrachud stated, was fundamental to an individual’s right to life and liberty according to Article 21 of India’s constitution.

Justice Ravindra Bhat asserted that there is no question that individuals have the option to select a life partner.

People have the right to choose their romantic partner and engage in physical intimacy with them in private, free from interference from society. If this right is threatened, the state must take action to protect it.

Besides Justice Sanjay Kishan Kaul, Justices PS Narasimha and Hima Kohli were also part of the panel of judges on the bench.

The Chief Justice of India (CJI) has urged the Court to refrain from getting involved in policy matters, while announcing a verdict on same-sex marriage.

The Chief Justice of India has declared that homosexuality is not just a characteristic of urban life, but is found in all areas. This statement comes as a result of the verdict of the same-sex marriage decision being announced. He argued that queerness is not limited to a certain place or group of people. He also stated his disagreement with the Centre’s opinion that the petitions for legal recognition of same-sex marriage only came from a specific area or socially privileged group.

The CJI D. Y. Chandarchud commented that it is wrong to assume queer individuals only inhabit urban and privileged parts of the country, as they exist in other locations too. Additionally, he noted that it would be erroneous to correlate “urban” with “elite”.

He noted that many people living in urban areas, who are either struggling financially or otherwise marginalised, remain unseen; this he argued is due to the fact that cities are characterised by geographic and social divisions based on class, religion and caste, meaning not all city-dwellers are of a higher status.


The court judgment dashed the dreams of a huge number of LGBTQ individuals in India. Supporters were very disheartened that the court did not challenge the government and provide same-sex couples with the right to marry.

According to Chief Justice Chandrachud, it is not the court which should introduce laws on equal marriage rights, but the authority of parliament.

The judge stated that in order to exercise judicial review, it is necessary to remain uninvolved in matters, particularly in those involving policy decisions, that are the responsibility of the legislature.

The Supreme Court’s five-member panel has issued a ruling that endorses same-sex marriage, with the following key points:

  • No formal acceptance of unions between members of the same gender
  • There is not a guaranteed right to civil unions according to the constitution or any other fundamental right.
  • A high-level committee appointed by the government will investigate the worries of same-sex couples.
  • Same-sex couples are not legally allowed to adopt together

What now for same-sex couples?

Progress is gradually being made for same-sex couples in India, who have encountered struggling to get their rights acknowledged. In 2018, a prohibition dating back to British colonial rule on homosexual activity was ended. This current lawsuit is seen as a likely landmark development on the rights of LGBTQ+ individuals in the nation.

LGBTQ+ people now do not have to worry about being sanctioned legally for their relationships. Unfortunately, they still have no legal standing in regards to family matters, such as rights of inheritance, succession, etc.

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