Published On: 19th April, 2026
Authored By: Sai Sloka Duvvuri
Nirma University
Citation: 2023 INSC 920
Court: Supreme Court of India (Constitution Bench)
Bench: D.Y. Chandrachud (Chief Justice), S.K. Kaul, S.R. Bhat, Hima Kohli and P.S. Narasimha, JJ.
Date of Judgment: 17 October 2023
Relevant Statutes/Provisions: Articles 14, 15, 19 and 21 of the Constitution of India (right to equality, non-discrimination, freedom of expression/association, and right to life and personal liberty); Special Marriage Act, 1954 (especially Section 4(c)); Foreign Marriage Act, 1969; Juvenile Justice (Care and Protection of Children) Act, 2015 (Section 57 relating to adoption); Transgender Persons (Protection of Rights) Act, 2019; and related personal laws (e.g., Hindu Marriage Act, 1955) and regulations affecting marriage and adoption.
Facts of the Case
In November 2022, two same-sex couples, Supriyo @ Supriya Chakraborty and Abhay Dang, and Parth Mehrotra and Uday Anand, filed writ petitions before the Supreme Court seeking recognition of their marriages under the Special Marriage Act, 1954. They challenged Section 4(c) of the Act, which restricts marriage to a “male” and a “female,” and argued that the exclusion of same-sex couples violates constitutional guarantees. The petitioners submitted that the denial of marital status deprives queer persons of a range of legal entitlements, including adoption, inheritance and spousal benefits, and thereby results in unequal treatment.
These matters were merged with connected challenges to the Foreign Marriage Act, 1969, and to certain adoption regulations, and referred to a Constitution Bench of five judges. The petitioners stated that the refusal to recognise same-sex unions infringes the rights to equality, non-discrimination, freedom of expression, association and dignity. They relied on Navtej Singh Johar v. Union of India[1] and National Legal Services Authority v. Union of India (NALSA)[2] as affirming constitutional protection for autonomy and sexual orientation, and argued that the choice of a partner falls within the domain of fundamental rights.
The Union of India resisted the challenge and maintained that marriage under Indian law is a statutory construct premised on a heterosexual framework. It argued that any alteration of that framework involves policy considerations within the legislative domain and cannot be effected through judicial interpretation.
Issues Involved
1. Whether the Constitution guarantees a fundamental right to marry and whether such a right extends to LGBTQ+ persons seeking recognition of same-sex unions.
2. Whether the Supreme Court under Article 32 can direct recognition of same-sex marriages in the absence of legislation, or interpret existing marriage laws to include queer couples.
3. Whether the exclusion of same-sex couples from the Special Marriage Act, 1954, and related statutes violates Articles 14 and 15, and whether these provisions can be read in a gender-neutral manner or must be struck down.
4. Whether the Constitution protects a right to enter into a civil union or similar legal partnership, and the extent to which constitutional safeguards apply to intimate relationships.
5. Whether limiting joint adoption to married couples under the Juvenile Justice Act, 2015, and the CARA Regulations is constitutionally valid.
6. Whether transgender persons in heterosexual relationships are entitled to marry under the existing statutory framework.
Legal Arguments
Petitioners’ Arguments
The petitioners maintained that the denial of legal recognition to their marriages violated their fundamental rights. They argued that the choice of a partner and the decision to marry or enter into an intimate relationship are protected aspects of life, liberty, equality and freedom of expression under Articles 14, 15, 19 and 21. Section 4(c) of the Special Marriage Act, which restricts marriage to a male and a female, was characterised as discriminatory and lacking any rational connection with the object of the legislation, thereby offending Article 14.
The petitioners urged the Court to interpret the marriage statutes in a purposive and gender-neutral manner so as to include same-sex couples. In the alternative, they sought a declaration that the impugned provisions were unconstitutional. Reference was made to comparative jurisprudence, including Obergefell v. Hodges,[3] to demonstrate that same-sex marriage has been recognised in other constitutional democracies. Attention was drawn to the practical consequences of non-recognition, such as the denial of inheritance, pension and adoption rights, which the petitioners argued caused real hardship to queer families.
With regard to adoption rights, the petitioners challenged the CARA Regulations 2022[4] and the relevant provisions of the Juvenile Justice Act on the ground that limiting joint adoption to married couples discriminates against unmarried and queer partners in breach of the right to equality based on sexual orientation. It was further pleaded that transgender persons in heterosexual relationships should be permitted to marry under the Special Marriage Act and other marriage laws by reading them harmoniously with the Transgender Persons (Protection of Rights) Act, 2019.
Respondents’ Arguments (Union of India)
The Union Government, through the Attorney General and Solicitor General, submitted that no fundamental right to marry exists in the Constitution; marriage is a statutory institution governed by laws enacted by Parliament (Entry 5, List III). It argued that marriage has traditionally been understood as a heterosexual union oriented toward procreation and societal continuity, a conception reflected in all personal laws. The Special Marriage Act was enacted primarily to facilitate inter-caste and inter-religious marriages, not to create a general code for all forms of unions; the exclusion of queer couples was therefore intentional and rational, not an arbitrary under-inclusion under Article 14.
The Union stressed the separation of powers, contending that the Court must not redraft laws or create new social institutions. It further argued that limiting joint adoption to married couples serves the purpose of child welfare, and that recognising unmarried or queer couples as adoptive parents would undermine the legislative framework designed around marriage. The Government urged that any remedy for queer families must come through the democratic process, not by judicial writ.
Judgment
The Constitution Bench rendered a divided verdict, with a 3:2 majority answering most issues against the petitioners. All five judges agreed that there is no unqualified fundamental right to same-sex marriage under Part III of the Constitution, and that the Special Marriage Act’s heterosexual definition cannot be interpreted to include queer couples.
Majority Opinion (Justice S.R. Bhat, joined by Justice Hima Kohli; Justice P.S. Narasimha concurring)
The majority held that marriage is a social institution recognised by statutes, not a natural or automatic right enforceable by courts. Noting that the Constitution does not explicitly secure a right to marry, it determined that legal recognition of unions is entrusted to the legislature. The majority refused to read the Special Marriage Act or related laws in a gender-neutral way, finding that doing so would intrude into legislative territory. It was emphasised that, if a broad right to marriage exists, it would impose positive obligations on the State that cannot be conjured by judicial fiat.
The majority acknowledged that LGBTQ+ individuals enjoy constitutional protection of their intimate and personal relationships under Articles 21 and 19. Queer couples were held to have rights to autonomy, companionship and expression (a “right to relationship”), but the Court held that these do not translate into a right to a legally sanctioned union in the absence of statute. The Court held that Section 4(c) of the Special Marriage Act and related heterosexual provisions are not unconstitutional under Article 14, reasoning that the classification has a clear nexus with the Act’s legislative purpose and that excluding same-sex unions was not arbitrary. The majority noted that the Act aimed at social reform of caste and religion barriers, and that, at the time of its enactment, same-sex sexual activity was criminalised, so legislators could not have contemplated queer marriage.
On related issues, the majority approved the right of transgender persons in heterosexual partnerships to marry by interpreting marriage laws harmoniously with the Transgender Persons Act. It rejected joint adoption by same-sex couples, holding that Section 57(2) of the Juvenile Justice Act governs married couples only. Justice Bhat held that permitting joint adoption by unrelated adults “cannot be based on any known principle of interpretation” and would conflict with child welfare safeguards inherent in the marriage framework. He noted that unmarried couples may adopt individually but acknowledged that this leaves queer families without full legal protections.
The majority concluded that it could not itself reshape laws and that legislative or executive action was the appropriate avenue. The Court therefore advised that the State should study the adverse impacts on queer families and suggested the formation of a committee to consider entitlements for LGBTQ+ persons. Its final conclusion was that same-sex marriage is not a constitutional entitlement and that any recognition must await parliamentary legislation.
Minority Opinions
Chief Justice D.Y. Chandrachud and Justice S.K. Kaul wrote separate concurring opinions. Both agreed with the majority that there is no immediately enforceable right to same-sex marriage under the Constitution, but they dissented in several respects on how equality and relationship rights should be addressed.
The Chief Justice held that, while marriage as such is not constitutionally guaranteed, queer individuals enjoy constitutionally protected rights to life, dignity, choice of partner, expression and association. In his view, Articles 19, 21 and 15 together protect the right to enter into a union with a partner of one’s choice. He found that sexual orientation falls within the category of “sex” discrimination under Article 15, so denying recognition of same-sex unions impinges on equality. Chandrachud CJ argued that the State has an affirmative obligation to recognise and protect queer relationships, criticised the majority’s refusal to read same-sex marriage into existing law, and held that the legislature has a duty to extend marriage-like rights to these unions.
He expressed the view that the Act’s exclusion of queer couples bore no logical connection to its objective of facilitating inter-faith marriage. He was also more sympathetic on adoption, finding the CARA Regulations indefensible under Articles 14 and 15 and indicating that unmarried couples, including queer couples, should be permitted to adopt with proper safeguards. He appointed a Cabinet Secretary-led committee to study queer rights and outlined specific suggestions. While acknowledging that the judiciary could not legislate new marriage rights, the Chief Justice’s opinion functioned as a roadmap for legislative action, affirming that queer relationships merit dignity and equal concern.
Justice S.K. Kaul broadly agreed with the Chief Justice’s approach. He concurred that the right to form personal associations is an aspect of Articles 19 and 21 that should extend to queer couples, and agreed that sexual orientation is included in Article 15’s protected grounds. He held that the Special Marriage Act’s exclusion of queer persons violates the equality clause, finding no rational nexus between the classification and the Act’s goal of facilitating interfaith marriage.
Kaul J. recognised the “cascading effect” noted by the Chief Justice: that legalising queer marriage in one statute would affect many others. He deemed this a symptom of pervasive societal discrimination rather than a reason for inaction, and emphasised that legislative inaction cannot justify perpetuating this exclusion. Like the Chief Justice, Kaul J. saw the remedy as lying with the legislature rather than through immediate judicial construction. He criticised the majority for failing to address the fundamental injustice, suggesting that if courts cannot judicially reform the Special Marriage Act, they should at least not ignore its arbitrariness.
Ratio Decidendi
Marriage is not an unenumerated fundamental right under Part III of the Constitution. It is a statutory institution regulated by law. The courts cannot read into marriage laws the recognition of same-sex unions absent legislative sanction. The majority found that the Special Marriage Act’s heterosexual provisions have a rational basis and that excluding LGBTQ+ persons does not violate Article 14. Any extension of marriage status to queer couples requires a new legal framework, which Parliament must enact.
Obiter Dicta
The judgment contains several observations not essential to the majority’s decision. Chief Justice Chandrachud’s extensive discussion of India’s historical acceptance of diverse relationships, and his affirmation that queer intimacy is natural and constitutionally protected, are persuasive but non-binding dicta. The numerous welfare-oriented directives are remedial suggestions rather than core legal rulings. Justice Kaul’s historical exposition on marriage and society, and his conclusion that equality demands legislative attention to LGBTQ+ discrimination, also exceed the legal holding. None of these observations alter the majority’s outcome, but they elaborate on the judges’ views of liberty, equality and the role of democracy in advancing rights.
Final Decision
By a 3:2 majority, the Supreme Court dismissed the petitions seeking same-sex marriage recognition. The Court held that same-sex couples have no enforceable constitutional right to marry under existing law and refused to judicially extend the Special Marriage Act or other statutes to cover queer unions. The majority judgments were upheld, while the views of Chief Justice Chandrachud and Justice Kaul did not prevail on the main issues. The Court affirmed that transgender persons in heterosexual relationships may marry under current law. The status quo in marriage law was maintained, and the Court indicated that any change to recognise LGBTQ+ marriages must come through the legislative branch.
References
[1] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (India).
[2] National Legal Services Authority v. Union of India (NALSA) (Writ Petition (Civil) No. 604 of 2013), Supreme Court of India, 15 April 2014, <https://docs.manupatra.in/newsline/articles/Upload/4D72D521-93A4-4068-87CB-4159A7A0D9B6.2-d__human%20rights.pdf> accessed 28 February 2026.
[3] Obergefell v. Hodges, 576 US 644 (2015), <https://supreme.justia.com/cases/federal/us/576/644/> accessed 28 February 2026.
[4] Central Adoption Resource Authority, Adoption Regulations 2022 (Ministry of Women and Child Development, Government of India, 27 April 2022), <https://cara.wcd.gov.in/PDF/adoption%20regulations%202022%20english_27.pdf> accessed 28 February 2026.
