NEW DELHI: The authors of the majority and minority opinions in the verdict of a five-judge Supreme Court bench, which rejected the LGBTQIA community’s plea for statutory right to marry, had myriad and contrasting views on something as basic as ‘marriage’, one of the oldest social institutions.
CJI D Y Chandrachud, with whom Justice Sanjay Kaul concurred, delved into marriage as an institution in his 247-page judgment and focussed on why its regulation by the state through legislations was a necessity to democratise its benefits to both partners even though he opined that civil unions among queer couples deserved legal recognition.
Justice S R Bhat, who co-authored his judgment with Justice Hima Kohli and with which Justice P S Narasimha concurred, went into the elements of marriage and concluded that courts could not assume the role of legislature in conferring or denying legitimacy to a marriage or even make judicial pronouncements on legality of civil unions.
Justice Bhat, in his 89-page judgment, said, “Marriage, in the ultimate context, is not defined merely by the elements which delineate some of its attributes, and the differing importance to them, depending on times, such as permanence of a sexual partner, procreation and raising of children, stability to family, and recognition in the wider society.
“Some, or most of these elements may be absent in many relationships: there may be no procreative possibility due to choice, or otherwise; some marriages may have no wider context, such as absence of the larger family circle, due to several reasons, including alienation or estrangement; there may be no matrimonial home, in some marriage, because of constraints including spouses being located in different places; some marriages may be (by choice or otherwise) bereft of physical or sexual content.”
He said such marriages could also be successful and fulfilling like any other marriage, which in the core signified companionship, friendship, care and spiritual understanding of oneness, transcending other contents and contexts. “Thus, ‘home’ is not a physical structure; it is rather the space where the two individuals exist, caring, breathing and thinking, living for each other. This is how traditionally it has been understood,” he said.
Justice Bhat said law had the potential to play a legitimising role. Understanding the feelings of the queer community, he said the feeling of exclusion that came with the present status quo was felt by them on a daily basis.
“However, having concluded that there exists no fundamental right to marry, or a right to claim a status for the relationship through the medium of a law (or legal regime) and having acknowledged the limitations on this court in moulding relief, this court must exercise restraint; it cannot enjoin a duty or obligation on the state to create a framework for civil union or registered partnership, or marriage, or abiding cohabitational relationship,” he said.
While leaving the decision on legitimising same-sex marriages to the government and the legislature, Justice Bhat sounded a caution, “Prolonged inactivity by legislatures and governments can result in injustices. Therefore, action in this regard would go a long way in alleviating this feeling of exclusion that undoubtedly persists in the minds and experiences of this community.”
CJI Chandrachud said the unregulated social institution of marriage came to be regulated by the state for two important reasons – to achieve social order by regulating the sexual conduct of people through marriage, and secondly, by prescribing a legal mechanism for the devolution of property based on the legitimacy of the heir.
The CJI said, “Engaging in sexual conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law. It is also crucial to note that impotency and not sterility is a ground for divorce… By prescribing impotency as a ground for declaring a marriage void (and not sterility), the State emphasised the centrality of sexual relations in a marriage as opposed to procreation. In this way, the State governs the conduct of society by regulating sexual conduct in a marital relationship.”
“The state regulates marriage to create a space of equal living where neither caste, religion and sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship,” Justice Chandrachud said.
“The regulation by the state and its attempts to create a more equal personal sphere also contribute towards factual equality where women are empowered to defy patriarchal notions of gender roles in daily life. The impact of the state’s involvement in creating a more just personal space by reforming the institution of marriage on the basis of constitutional ideals can be seen when a wife chooses to retain her surname after her marriage or where the partners equally contribute towards raising their child,” he added.

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