A Bench comprising CJI D.Y. Chandrachud, Justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha during the hearing of the verdict on same-sex marriage, at the Supreme Court, in New Delhi on October 17, 2023.
| Photo Credit: ANI
From sati to interfaith marriages, the institution of marriage has undergone a sea change, the Supreme Court said on October 17 while asserting that it is incorrect to characterise marriage as a “static, stagnant or an unchanging institution.”
A five-judge constitution Bench of the top court unanimously refused to accord legal recognition to same-sex marriage under the Special Marriage Act, ruling that it is within Parliament’s ambit to change the law for validating such union.
Writing a 247-page separate judgement, Chief Justice D.Y. Chandrachud said there is no universal conception of marriage and it is understood differently in law, in religion, and in culture.
Some religions consider marriage a sacrament while others consider it a contract, he wrote.
The CJI said while marriage is a voluntary union – of the mind, the body, and the soul, it signifies a deep and abiding commitment to one another and a devotion to the relationship.
“From sati and widow remarriage to child marriage and inter-caste or interfaith marriages, marriage has metamorphosed. The institution as we know it today would perhaps be unrecognizable to our ancestors from two hundred years ago.
“Despite vehement opposition to any departure from practice, the institution of marriage has changed. This is an incontrovertible truth. Here, it is also important to take note of the fact that these changes were brought about largely by acts of Parliament or the legislatures of the states,” CJI wrote.
The CJI said 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.
“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.
“This court cannot either strike down the constitutional validity of the Special Marriage Act 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,” he said.
The CJI said 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.
“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 benefits under the law,” the CJI said.