Top court says no right to marry for same-sex couples in India

New Delhi, Oct 17 (EFE).- India’s top court on Tuesday declined to recognize same-sex marriages and instead asked the government to form a committee on a legal framework to deal with the issue.

A five-judge bench headed by the Chief Justice of India, D.Y. Chandrachud, delivered the verdict, holding that Indian law did not recognize the right to marry or have a civil union for same-sex couples and it was up to the parliament to frame such a law.

Chandrachud said there were degrees of agreement and disagreement among the justices “on how far we have to go” on same-sex marriages.

The court emphasized that while queer couples have the liberty to choose their partners, live together, and celebrate their unions, a “right to marry” cannot be conferred upon them through a judicial decree.

In a split decision of 3:2, the court dismissed numerous petitions advocating for same-sex marriage rights under the provisions of the Special Marriage Act, which governs civil weddings sanctioned by the state, independent of religious doctrines.

The same-sex couple petitioners had asked the court to amend secular statute that operates independently from the personal laws of Hindu, Muslim, and Christian traditions.

The 1954 law extends to people of all faiths, giving legal recognition to marriage and providing legal benefits and protections to the couple, like inheritance rights, succession rights, and social security benefits.

Lawyer Mario da Pena, one of the petitioners, said he was “deeply disappointed.” “It is possibly the most conservative judgment in the last years. The saddest bit is that there is no mandate on parliament to legislate.”

In his verdict, the top judge said the court “must steer clear of matters, particularly those impinging on policy, which fall in the legislative domain.”

However, he said the state and federal governments should provide legal protections to same-sex couples, arguing that denying them services granted to heterosexual couples violates their fundamental rights.

“This court has recognized that queer people cannot be discriminated against. Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental rights,” Chandrachud said.

He called upon the government to undertake initiatives to raise awareness about queer rights, establish hotlines for the queer community, and prevent intersex children from being compelled to undergo surgeries.

The judge recorded the statement of the government that it would constitute a committee to decide the rights and entitlements of persons in queer unions.

He said the proposed committee, led by the federal government’s top bureaucrat, should explore the inclusion of queer couples as a family on ration cards, allow queer couples to nominate joint bank accounts, and grant them rights related to pension and gratuity benefits.

The court also granted same-sex couples the right to adopt a child, contending that there was “no material on record to prove that only a married heterosexual couple can provide stability to a child.”

“Law cannot assume that only heterosexual couples can be good parents. This would amount to discrimination. So the adoption regulations are violative of the constitution for discrimination against queer couples.”

The Tuesday ruling follows a historic 2018 judgment by the Supreme Court that scrapped a colonial-era ban on gay sex.

The court began hearing the petitions in April, with 20 petitioners pitted against the government of India led by Prime Minister Narendra Modi, an icon of Hindu nationalism who has been ruling the country for nearly a decade now.

Modi’s government had opposed the petitions and called same-sex marriage a “Western” and “urban elitist” concept.

The government had noted that such marriages were not “comparable with the Indian family unit concept of a husband, a wife, and children.”