NEW DELHI: The Supreme Court on Tuesday declined to grant legal sanctity to the right to marriage to the same sex couples.
The court, however, declared that such queer couples did have a right to cohabitational union without any threat to violence, coercion or interference.
A five-bench Constitution bench led by Chief Justice of India D Y Chandrachud held that the law does not recognise right to marry for same sex couples and it is upto Parliament or State legislatures to make law on this subject.
The bench, also comprising Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and P S Narasimha, delivered the judgement on a batch of 21 petitions seeking the recognition to right to marriage under the Special Marriage Act.
All the five judges agreed that the court cannot enter into legislative arena to grant such rights to the queer couples under the Special Marriage Act.
Of the five-judge bench, CJI and Justice Kaul said the right to marriage was available under the existing laws and directed the Union and state governments to grant consequential benefits to such same sex couples.
The other three judges --Justices Bhat with Kohli and Justice Narasimha -- declined to recognise marriage of same sex couples.
The CJI and Justice Kaul held the right of queer couples to adopt a child and struck down CARA regulations.
But the other three judges did not agree to the view and upheld the validity of the CARA regulations excluding the queer and unmarried couples from adoption.
All the judges, however, took into record the Union government's statement that it will constitute a committee to streamline the rights and benefits to be extended to queer couples.
The CJI and Justice Kaul recognised the right to form civil unions but the majority of three judges rejected the view that there can be a right to form civil unions and that the State would be under an obligation to ensure a bouquet of benefits for the non-heterosexual couples, as permissible under the law.
The majority judges said when the right to marry is not a fundamental right but just a statutory right, there cannot be a right to civil union that can be legally enforceable.
The Court further held that there is no unqualified right to marry, and conferring of legal status to any civil union can only be through enacted law.
Having held thus, it took on record the Centre's statement that a Committee will be formed to examine the rights and benefits that can be conferred on queer couples and persons.
The verdict, with "some elements of agreement, and some of disagreement" (in the words of the Chief Justice himself) was passed by a constitutional bench comprising CJI DY Chandrachud, Justice Sanjay Kishan Kaul, Justice Ravindra Bhat, Justice Hima Kohli and Justice PS Narasimha.
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