Legal Odyssey On Non-Heterosexual Marital Rights In Indian Tapestry - A Comment On Supriyo Vs. Union Of India

The discrimination faced by the LGBTQIA+ community stems from both deep-seated social morality and the State's insufficient efforts to raise awareness about queer rights. Despite the Court recognizing sexual orientation as a core trait, members of the queer community endure economic, social, and political oppression. Public displays of affection can lead to violence, and those from socio-economically marginalized backgrounds face heightened harassment.

Disclosure of sexual orientation can result in constant monitoring, restrictions, and even forceful conversion therapy. Housing discrimination is evident, with difficulties in renting homes, often due to assumptions and prejudices of neighbors.Seeking police protection from family violence may backfire, as couples are sometimes handed over to their families instead of being granted protection. The discrimination and violence faced by the queer community push many to remain closeted or adopt behaviors imitating heterosexual norms as a coping mechanism.

The protection ensured for Transgenders

The British enacted the Criminal Tribes Act in 1871, regulating certain communities, including transgender persons referred to as 'eunuchs.' This act subjected them to indignities, such as medical examinations, penalties for dressing "like a woman" or engaging in certain activities, restrictions on making gifts, and invalidating their wills. Despite the repeal of the Criminal Tribes Act after independence, its biases seem to persist in various central and state enactments on 'habitual offenders.' This legal legacy influenced societal attitudes and practices hostile to the LGBTQ+ community.

Deviating from the more accepting pre-colonial norms, the Supreme Court, in NALSA case recognized the transgender community as a "third gender" and directed the government to address stigma, oppression, and create awareness about their struggles. Parliament subsequently enacted the Transgender Persons (Protection of Rights) Act 2019 to safeguard transgender rights and provide welfare measures. Despite these measures, members of the transgender community face discrimination, physical and sexual violence, forced sex-reassignment surgeries, and hate speech. Media also reinforces stereotypes.

The petitioners, representing the LGBTQIA+ community, asserted formal and visible discrimination by the State, particularly in the denial of recognition of their relationships through marriage.

Article 32 of the Constitution empowers individuals to approach this Court for the enforcement of rights in Part III, negating the argument that queer people must await parliamentary action for marriage equality.

The petitioners argued that Special Marriage Act (SMA) should be interpreted in a gender-neutral manner, with terms like "husband" and "wife" read as "spouse," as the language allows for a gender-neutral interpretation. And the Petitioner’s further argued that by reading down the SMA and the FMA for a constitutionally compliant interpretation, neither the text of the statute nor the intention of Parliament act as a limitation. Only the underlying thrust of the legislation and the institutional capacity of this Court are relevant and said that SMA was designed to facilitate marriages lying outside the pale of social acceptability.

The Court was actually not asked to substitute for the legislature but to find that the exclusion of a group solely based on ascriptive characteristics is unconstitutional.

Civil unions are not considered an equal alternative to marriage, as relegating non-heterosexual relationships to civil unions implies their inferiority and subordination to heteronormative social orders.

Exclusion or discrimination in Section 4(c) of the SMA is considered ultra vires the Constitution, violating these articles. Article 21 includes the right to happiness, encompassing a fulfilling union of one's choice.

The doctrine of reading-in is recognized in Indian jurisprudence, allowing for interpretations that align with constitutional principles.

The argument that only Parliament can grant a new 'socio-legal status of marriage' to LGBTQ persons, contingent on extensive consultations and majority opinions is unsustainable because LGBTQIA+ community rights cannot be subject to majority opinion.

The denial of recognition to non-heterosexual marriages deprives individuals of expressive and material benefits like (i) matrimonial and child care-related benefits; (ii) property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits; and (vi) miscellaneous benefits and impeding their self-definition, autonomy, and pursuit of happiness.

International covenants, including the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights, emphasize the state's duty not to interfere with the right to marry and have a family based on personal choice. Recognition of marriages of same-sex and gender non-conforming couples under the FMA is asserted to promote the comity of nations.

Marriage statutes in India should be read inclusively of all gender identities and sexualities, aligning with the court's pronouncements in the National Legal Services Authority and Navtej cases.

The object of the FMA, adopting the scheme of the Special Marriage Act (SMA), is asserted to provide a uniform, civil, and secular marriage law for couples with at least one Indian citizen. However, by recognizing only opposite-sex marriages, it is argued to deny same-sex and gender non-conforming couples the right to marry on grounds of sexual orientation and gender identity, violating Article 15 of the Constitution.

A spouse of foreign origin of an Indian Citizen or Overseas Citizen of India (OCI) cardholder is entitled to apply for OCI registration under Section 7A(1)(d) of the Citizenship Act 1955. This provision is gender, sex, and sexuality neutral, unlike the Foreign Marriage Act (FMA) and Special Marriage Act (SMA). The absence of conditions related to gender/sex/sexuality is a casus omissus in the statute.

The court has not heard arguments on the issue of 'notice and objections regime' in the SMA (Sections 5 to 9). Because even if there is a positive signal from the legislature of recognizing the marriages of non-heterosexual individuals, these notice and objection provision will stand as an obstruction to their union, and the court has failed to take into consideration of these factors.

Attorney General R. Venkataramani, representing the Union of India, while making submissions mentioned that granting legal recognition to non-heterosexual unions would lead to the dilution of heterosexual marriages by citing the example of Netherlands where he says more heterosexual couples opted for domestic partnerships after recognizing non-heterosexual unions and further stated that is why legal recognition is not given to them for to protect the institution of marriage. But to the contrary, a study based on data from the Netherlands, where same-sex marriages were formalized in 2011, found that children raised by non-heterosexual parents outperformed their counterparts by certain metrics.

Because of absence of recognition of non-heterosexuals, some concealed their sexual orientation, even entering into 'lavender marriages' to hide their true selves.

In fact 34 out of 194 countries have recognized marriage between non-heterosexual individuals, and in many cases, legal recognition is granted through registered partnerships or civil unions.

The problem now is Navtej affirmed the right of homosexuals to form a union under Article 21 but ruled out the possibility of non-heterosexual marriages.

While procreation and family-building are significant aspects of marriage, they are not exclusive to heterosexual couples. A static conception of marriage, solely focused on sexual relations or procreation, is narrow and diminishes its emotional aspects.

State interference can be direct, as seen in laws like Section 377 criminalizing homosexual activity, or indirect when the state fails to create sufficient space for exercising this freedom. The State indirectly infringes on freedom when it doesn't formally recognize associations, hindering their unrestricted exercise.

Decisions where court shaped the laws

Divorce laws evolved over time. The Indian Divorce Act 1869 initially favored husbands in seeking divorce. In 2001, amendments made divorce grounds, including adultery, available to both spouses. The Hindu Marriage Act 1955 extended divorce rights to all Hindus, and in 1976, Section 13B allowed mutual consent divorce. The court, in Shilpa Sailesh v. Varun Sreenivasan, affirmed the authority to grant divorce due to irretrievable breakdown, even if one party opposes or fails to give consent for the same.

The Domestic Violence Act recognizes relationships beyond marriage, defining "domestic relationship" to include those "in the nature of marriage." In Indra Sarma v. VKV Sarma, the court specified criteria for considering a relationship in the nature of marriage, emphasizing factors like duration, shared household, financial arrangements, domestic responsibilities, sexual relationship, procreation, and public socialization.

The Courts recognize that in certain circumstances, there is no State interest in regulating personal space. For instance, Article 21 protects a woman's reproductive choices, including the decision to terminate her pregnancy. The Medical Termination of Pregnancy Act 1971 acknowledges women's decisional autonomy over procreation.

Role of the state in personal sphere

The state prescribes conditions for valid marriage, including consent, minimum age, and prohibited relationships. It regulates conduct during marriage, penalizing cruelty and domestic violence. Various marriage laws provide grounds for divorce, regulating actions during marriage that may lead to legal dissolution. The state also regulates post-divorce relationships, such as maintenance payments. Marriage, once a purely social institution, became regulated by the state to maintain social order, regulating sexual conduct and providing a legal mechanism for property devolution based on the legitimacy of the heir. The state's active involvement in every stage of the marital relationship has contributed to the social and legal significance of marriage.

United States, United Kingdom and South Africa as examples

The notion of contrasting the legal dimension of licensed marriages in the United States with the deeply religious and diverse nature of marriage in India, where personal laws and customs govern marriages for members of all faiths is mistaken.

The US Ninth Amendment is exhaustive. Fundamental rights, characterized as positive and negative, involve freedom from governmental action (negative) or place a duty on the State to provide benefits (positive). Therefore, if the Constitution guarantees the right to marry, a corresponding positive obligation exists for the State to establish the institution if the legal framework doesn't already provide for it. But in essence comparing with India, the judgement while not recognizing non-heterosexual marriage has also stated that the constitution does not provide for right to marriage. Which will expressly allow a state to abstain from making legislations for such non-heterosexuals.

In the US Supreme Court's Obergefell decision, the court recognized the right to marry as fundamental. In Obergefell, the US Court held that the Fourteenth Amendment obligated states to license same-sex marriages, overturning state laws defining marriage as between one man and one woman. The Court, through Justice Kennedy, identified four components of the right to marry: choice, protection of intimate association, safeguards for children and families, and being a cornerstone of social order. The majority held that denying same-sex couples the right to marry violated the equal protection clause.

In the Fourie case, the South African Constitutional Court found Section 30(1) of the Marriage Act unconstitutional for excluding same-sex couples from marriage. The court suspended the declaration of invalidity for one year, allowing for corrective measures.

The Constitutional Court of South Africa emphasizes that the common law should not be trapped within its past but needs to be revisited and revitalized with the spirit of constitutional values. So India, though a common law country should not confine itself by ensnared in societal notions, instead should attempt to reap the same fruits of equality to non-heterosexual couples.

In the UK House of Lords case Ghaidan, the respondent, in a stable homosexual relationship, sought to be considered a 'statutory tenant' under the Rent Act 1977, similar to a surviving spouse in a heterosexual relationship. The Rent Act differentiated between the treatment of heterosexual and homosexual couples, and the respondent argued it violated human rights. The Rent Act favored heterosexual couples in tenancy rights. The respondent claimed this difference based on sexual orientation infringed on Article 14 (prohibition of discrimination) read with Article 8 (right to respect for private and family life) of the European Convention on Human Rights. He invoked the UK’s Human Rights Act 1998 to argue for an interpretation aligning the Rent Act with human rights principles. The House of Lords accepted the respondent's argument, finding no legitimate state aim justifying disparate treatment of heterosexual and homosexual couples under the Rent Act. It held that the Rent Act violated human rights and, using Section 3 of the Human Rights Act, interpreted it to grant the same rights to the surviving partner in a homosexual relationship as in a similar heterosexual relationship regarding succession as a statutory tenant.

Types of Intimate Zones

The intimate zone of privacy covers spatial privacy (freedom to be let alone) and decisional privacy (freedom of self-development). Human relationships fall within this zone as they involve intimate choices confined to the private space.The intimate zone is protected from State regulation as decisions in this private space, exercising individual autonomy (e.g., choosing a partner or procreation), are considered private activities.

Dr. Abhishek Manu Singhvi had given 3 interesting suggestions by stating mere recognition of marriage is not enough and outlined three plausible interpretations of Section 21A regarding the succession of property of Hindu non-heterosexual couples under the SMA : Firstly to defer the decision on Section 21A's applicability to non-heterosexual Hindu couples for future litigation. Secondly to Interpret succession for Hindu non-heterosexual couples under the Hindu Succession Act and for other interfaith non-heterosexual couples under the Indian Succession Act with a gender-neutral reading. Thirdly to exclude personal law-related issues from the current litigation, reverting to the position before Section 21A's introduction, where the Indian Succession Act applies to all Special Marriage Act marriages.

Non-recognition of 'atypical families' or 'chosen families,' irrespective of marital status, violates various constitutional articles.

It's crucial to note that the Indian Constitution doesn't recognize the family or partnerships as a unit for securing rights, unlike the Irish Constitution. The absence of this recognition emphasizes individual rights over a family unit's rights. For example, the atypical family was recognized by the court in Deepika Singh Vs. Central Administrative tribunal case, which challenges the traditional understanding of families as a single, unchanging unit with a mother, father, and children. Atypical families, including domestic partnerships or queer relationships, deserve legal protection and social welfare benefits, emphasizing that the law should not disadvantage families different from traditional ones. But it is shocking to see and difficult to digest that the Chief Justice is differing and inconsistent from his previous opinion where he himself held that atypical families which are different from traditional family units also entitled to equal protection of Law and also entitled to benefits from legislation.

The comparison of queer relationships with guru-chela relationships by the court while discussing the concept of “Chosen family”is unfounded. The concept of guru-chela relationship is not going to reap any material benefits as like a spouse in heterosexual relationship, but the primary argument is that the non-heterosexual couples is requiring recognition to desire for such benefits

Principle 24 of the Yogyakarta Principles emphasizes the right of all individuals, regardless of sexual orientation or gender identity, to find a family. Citing that India is not a signatory is a vanishing argument because in decriminalizing homosexuality in the case of Navtej Singh, the constitutional bench of the Supreme Court of India ruled that the Yogyakarta Principles align with the basic rights perspective found in the constitution.

Whether can they argue that mental health can be compromised by discrimination and the inability to choose a life partner. Because the same Apex Court, in the time of covid, has interpreted that the right to health is not subservient and it is fundamental and that will prevail. Discrimination based on sexual orientation is offensive to dignity and self-worth, as affirmed in the K.S. Puttaswamy case.

Material and expressive entitlements arising from such unions should have been made available to queer couples, considering their inability to marry under the current legal framework.

Article 15

The court distinguished between ascribed status and achieved status and emphasised that status is a social phenomenon.Article 15 do not solely relate to ascriptive characteristics.Discrimination based on sexual orientation is constitutionally suspect, and laws discriminating on this basis are considered suspect under Article 15(1). Sexual orientation is seen as part of the meaning of 'sex' in Article 15(1), and discrimination on this ground indirectly involves discrimination based on gender stereotypes, which is prohibited. Overemphasizing gender norms as the sole reason for discrimination faced by the queer community is reductionist and may undermine their identity.

The grounds mentioned in Article 15 are markers of identity, and their constitutional entrenchment is based on historical and social discrimination against these identities. The word "sex" in Article 15 includes sexual orientation, not just due to the causal relationship between homophobia and sexism but because "sex" is a marker of identity related to sex and gender. Therefore, restricting the right to enter into a union based on sexual orientation violates Article 15. The four-prong proportionality test, particularly the integrated proportionality standard must be used to assess the justification of such restrictions.

Protective provisions, such as reservations, for identities under Article 15 are not exceptions to anti-discrimination laws but further the principle of equality. However, if a law is proven to discriminate based on protected identities, it cannot be justified by state interests. The anti-discrimination principle of Article 15(1) is complied with by changing "male applicant" and "female applicant" to "prospective adoptive parent 1" and "prospective adoptive parent 2," acknowledging all types of queer partnerships and refraining from discrimination based on sexual identity.

Sex refers to reproductive organs, while gender identity is an internal, individual experience that may not correspond to assigned sex. Sexual orientation is not the same as gender or sex. The Yogyakarta Principles define sexual orientation as a person's capacity for emotional, affectional, and sexual attraction to individuals of a different or the same gender.

The argument of the Union that the Transgender Persons Act eliminates discrimination against the queer community in India is invalid as the Act only applies to individuals with a genderqueer or transgender identity, not those with a non-heterosexual sexual orientation. The term 'genderqueer' in the Act refers to gender identity, not sexual orientation, making it clear that the legislation applies only to those with a gender identity different from their assigned gender at birth.

However, after the Navtej judgment, which declared Section 377 unconstitutional, Parliament hasn't enacted a law addressing discrimination based on sexual orientation.

Court’s role in State inaction

In Union of India v. Association of Democratic Reforms, the court stressed the importance of voters being well-informed, even suggesting that the judiciary can step in when there's executive inaction. Article 32 of the Constitution empowers the Supreme Court to issue directions without distinguishing between state action and inaction.

In Sheela Barse v. Union of India and PUCL v. Union of India, where the court directed action by the state to protect rights, showing that courts can intervene in the absence of a legal regime.

In State of Himachal Pradesh v. Umed Ram Sharma, where the court recognized a duty on the state to provide roads for residents, even without a specific law mandating it. In the absence of a specific law does not restrict the court's power to enforce constitutional rights.

In the Common Cause judgment, where the court expanded on the theme of liberty under Article 21, emphasizing the intrinsic value of dignity. The judgment recognized the right to die with dignity for a dying or terminally ill person, approving only passive euthanasia. It has rejected the argument that legislation was necessary for passive euthanasia, asserting its authority to issue guidelines.

The initiatives made by High Courts

In moving on step further, the Delhi High Court held that Non-heterosexual unions are entitled to protection under the Constitution in Maqbool Fida Husain v. Rajkumar Pandey.Where it was held that “Our Constitution by way of Article 19(1) which provides for freedom of thought and expression underpins a free and harmonious society. It aids in the development of tolerance as a virtue. It's been argued that almost all other forms of freedom depend on the freedom of expression as their foundation. It is the foundation of civilization, and without it, intellectual freedom would wither away.

In Arunkumar v. Inspector General of Registration, the Madras High Court ruled that the term "bride" in the Hindu Marriage Act isn't static, it adapts to the legal system's current form. The court upheld the fundamental rights of petitioners, directing the registration of their marriage in April 2019 which is before the enactment of Transgender persons (Protection of rights) Act in August 2019.

Adoption Regulations

The question is whether Regulation 5(3) of the Adoption Regulations, which requires a couple to be married and in a stable marital relationship for two years, is in violation of the Juvenile Justice Act (JJ Act) and the Constitution. While Section 57(2) doesn't explicitly mandate that only married couples can adopt, Regulation 5(3) imposes this restriction. The court argues that the JJ Act doesn't exclude unmarried couples from adopting. Regulation 5(3) contradicts this by expressly excluding unmarried couples and prescribing a condition beyond the legislative intent. The court concludes that CARA exceeded its authority by introducing Regulation 5(3), as it goes against the tenor of the JJ Act and Section 57.This action of court is applaudable because of court’s reasoning that not all married couples automatically offer a stable environment, and conversely, unmarried relationships are not inherently unstable.

Good or Bad Parenting

Studies such as "Lesbian and Gay Parenting" by the American Psychological Association concludes that the home environment provided by non-heterosexual couples is not different from that of heterosexual parents.

Another study, "Same-sex parenting in Brazil and Portugal: An integrative review," highlights the challenges faced by non-heterosexual families due to delays in recognizing same-sex marriage.

Another paper titled "Academic achievement of children in same and different-sex parented families," indicating that children raised by same-sex couples perform at least as well as those of heterosexual parents.

The Indian Psychiatric Society, consisting of 7,000 mental health professionals in India acknowledges potential challenges, stigma, and discrimination while raising children by non-heterosexual parents.

Studies indicate that partners in non-heterosexual relationships share unpaid labor more equally than those in heterosexual relationships.

Guidelines for Protection of Queer Couples

The court stated that before registering an FIR against a queer couple or an individual in a queer relationship, conduct a preliminary investigation as per Lalita Kumari v. Government of U.P., ensuring the complaint discloses a cognizable offense. If the person is an adult engaged in a consensual relationship or has left their natal home voluntarily, the police shall close the complaint after recording a statement to that effect. And directed the police to avoid summoning queer couples solely based on their gender identity or sexual orientation, refraining from unnecessary harassment. And further directed Police must not compel queer individuals to return to their natal families against their will. When a complaint is filed by queer persons citing family restrictions on their freedom, police should ensure their freedom is not restricted after verifying the complaint's authenticity. In cases where violence is anticipated from the family due to the complainant's queer identity or relationship, police should provide due protection after verifying the legitimacy of the complaint.These guidelines will atleast serve as an interim protection to the queer couples from getting harassed.

Article 21

The autonomy to choose a spouse or life partner is considered integral to the fundamental right to live. Court decisions, such as Asha Ranjan v. State of Bihar and Shafin Jahan v. Asokan K.M, highlight the constitutional right to choose a life partner based on individual choice, rejecting barriers like "class honour" or "group thinking."

Courts in cases like Jeeja Ghosh v. Union of India, recognize human dignity as a core value, stating that the right to life includes the right to live with dignity. Dignity has both internal and external dimensions. Internally, it is intertwined with privacy, while externally, it entails the right to be treated as a fellow human with due respect and equal worth. Denial of these rights diminishes individuals in their own eyes and in the eyes of the world, leading to a loss of self-worth and moral worth.

In some instances, Indian courts often interpret statutory laws through the lens of fundamental rights, as demonstrated in the Central Inland Water Transport Corpn. v Brojo Nath Ganguly case.

Right to relationship

Two consenting individuals have the right to decide to live together, cohabit, and create their unique idea of a home, following the liberative effect of Section 377 being read down.

But the Chief Justice's judgment proposed a theory of a Unified thread of rights, where lack of recognition leads to deprivation of specified rights under Articles 19 and 25, including Article 21.

The court acknowledges a right to a 'relationship' falling within Article 21, including the right to choose a partner, cohabit, and enjoy physical intimacy. This right is not seen as a fundamental right to marry but is characterized as a 'right to relationship.' The justification for a positive obligation based on the summation of rights that such couples are said to be deprived of is hereby questioned by emphasizing the existing jurisprudence on the right to life, privacy, choice, and dignity. This goes against the principles that regulating the exercise of rights guaranteed under Article 19 can only be done through reasonable restrictions imposed by law. The court abruptly failed to recognize the theory that one right can lead to other rights emanating from it, as established in the All India Bank Employees Association case and affirmed in the Maneka Gandhi case.

Cases such as Sakal Papers, Bennet Coleman, and Express Newspapers, were based on the effects of laws or policies grounded in statutory provisions that prohibited expression of choice under Article 19(1)(a)

Article 14

The seven-judge bench in the case of In Re the Special Courts Bill, emphasizes that classification need not be precise or follow a scientific formula. The courts should not insist on delusive exactness but should focus on whether the classification is palpably arbitrary. When the courts recognize the Transgender marriage and waive the recognition for the non-heterosexuals by under-inclusion is per se discriminatory and thus leads to denial of equal protection which transgenders cherish.

The need for a legal regime facilitating matrimony of queer couples is deemed similar to the need for facilitating inter-faith marriages, which motivated the enactment of the SMA. Court decisions in Motor and General Traders v. State of AP and Rattan Arya v. State of T.N. states that the continued operation of an exemption or classification, which was once valid, can become unconstitutional with the passage of time. Mere lapse of time does not lend constitutionality to a provision that has become discriminatory.

In X v. Principal Secretary and Badshah v. Sou. Urmila Badshah Godse, emphasizing that laws should respond to changes in social reality. A law, though embedded in its time, should not be construed to treat it as current law.

Indirect discrimination may result from unconscious biases or structures that maintain an unjust status quo. This approach, should be prohibited to achieve substantive equality as prescribed by the Constitution.

The SMA primarily classified between heterosexual couples of differing faiths, not specifically between heterosexual and non-heterosexual couples. The exclusion of non-heterosexual couples renders SMA irrelevant, thus the doctrine of "reading down" should have been invoked. The principle of purposive interpretation, urges a gender-neutral interpretation or the inclusion of non-heterosexual couples by identifying the problem or mischief a statute aims to remedy. G.P. Singh in his book on Interpretation of Statutes emphasises that a departure from literal construction may be legitimate to avoid rendering any part of the statute meaningless.

The Court stated that terms like 'wife,' 'husband,' 'man,' and 'woman' in marriage laws aim to protect socially marginalized individuals, but the court failed to took into consideration that the non-heterosexual individuals are also vulnerable section and susceptible to society and thus recognizing them could not complicate the justice for women.

When the court is able to acknowledge with examples that these non-heterosexuals does not belong to the elite class of the society alone rather can be found in the working class society, it can’t able to find working solution through the power exercised under Article 32 of Indian Constitution instead concluded that unworkable results would arise if it recognized non-heterosexual marriages, especially concerning provisions related to age, prohibited degrees, and remedies like divorce and maintenance.

When the fundamental right to marry is not read into the Constitution, then what will pave the way for the legislation especially for the non-heterosexuals. In the end, these non-heterosexuals would be made to run from post to the pillar.

The concept for Equality for All is died when there is a denial of the right to choose a partner for certain section considering societal traditions and the state is silent on recognizing such choices though it acknowledged the indignities faced by the LGBTQIA+ community.

The deprivation faced by queer couples can be magnified in various scenarios. For instance, if one partner dies in a motor vehicle accident, the surviving partner may be excluded from inheriting the deceased's estate or receiving compensation due to restrictive definitions of terms like 'dependent' or 'nominee(s)' in a heteronormative manner. This discrimination leads to injustice.

The judiciary as separate branch under constitutional principle of separation of powers, the court could have mandated the creation of a legally recognized union through conflation of positive obligations on the state.

Through this direction, it is not absolute that the the legislature will create a statute to recognize such non-heterosexual marriages instead their may be different outcomes such as making marriage laws gender-neutral, creating a separate statute similar to the Special Marriage Act (SMA) for the queer community, or enacting civil unions or domestic partnership legislation. So the rights to the non-heterosexual couples is not concrete, certain or guarenteed.

There is no need for specific acknowledgement that Queer persons are not precluded from celebrating their commitment or relationship within the social realm. Because that right became absolute when the section 377 of Indian Penal Code was struck down.

The court failed to answer a significant question on whether the absence of law or a regulatory framework, or the State's failure to enact law, amounts to discrimination protected under Article 15.

In future, discrepancies may arise because of the court’s recognition to adopt the child by non-heterosexual couples through the interpretation of unmarried couple’s right to adopt. There will be a potential breakdown of an unmarried couple because of absence of entitlement to earned benefits-that may affect the well-being of the adopted child. This may again cause trauma and comes to the initial point of question of the absence of recognition of marriage between them and would thus result in unforeseen tragedy.

Dr.Prema E is the Associate Professor and Assistant Dean at VIT School of Law, Chennai. & Adv. Ragul O.V. is an Advocate practicing  at Madras High Court .Views are personal.