No Fundamental Right to Marry: Supreme Court Declines Judicial Creation of Same‑Sex Marriage, Protects Queer Cohabitation and Affirms Transgender Right to Marry

Introduction

This Constitution Bench decision in Supriyo @ Supriya Chakraborty v. Union of India (2023 INSC 920, decided on 17 October 2023) is the Supreme Court of India’s most comprehensive pronouncement on “marriage equality”. Petitioners—queer couples and activists—sought (a) recognition of a fundamental right to marry; (b) a gender-neutral interpretation of the Special Marriage Act, 1954 (SMA) and the Foreign Marriage Act, 1969 (FMA) to include same-sex couples; (c) ancillary reliefs (including directions to authorities and a review of adoption eligibility rules).

Four opinions were delivered:

Chief Justice Dr. D.Y. Chandrachud (lead opinion);
Justice Sanjay Kishan Kaul (concurring with CJI on broad principles but writing separately);
Justice S. Ravindra Bhat (speaking for the majority, joined by at least one concurring opinion);
Justice P.S. Narasimha (concurring with the majority).

While all judges rejected a judicially-created right to same-sex marriage under the SMA/FMA, they converged and diverged on crucial axes:

All agreed there is no fundamental right to marry under the Indian Constitution.
All refused to “read in” same-sex marriage into the SMA/FMA, citing institutional limits and workability.
All affirmed the constitutional protection of queer persons’ right to cohabit and to be free from violence and coercion, and recorded the Union’s assurance to set up a committee to examine extending benefits/entitlements to queer couples.
All recognized that transgender persons in heterosexual relationships can marry under existing law.
The Bench split on joint adoption by unmarried couples (including queer couples): the Chief Justice read down the adoption regulations to allow it; the majority (Justice Bhat and Justice Narasimha) did not, though they flagged the discriminatory impact and urged policy review.

Summary of the Judgment

No fundamental right to marry: The Constitution does not expressly guarantee a right to marry. Marriage is primarily a statutory and customary institution (per all opinions).
No judicial re-writing of the SMA/FMA: The SMA/FMA cannot be “read” as gender-neutral to include same-sex couples. Doing so would be judicial legislation, cause structural incoherence, and trigger cascading conflicts with allied statutes (per all opinions).
Queer cohabitation protected: Queer persons have a right to form intimate relationships, cohabit, and live free from state/familial interference, with police protection against threats and violence (per all opinions). The majority explicitly directs that such rights be protected by the state and that queer persons not be subjected to involuntary medical/surgical interventions.
Entitlements Committee: The Court recorded the Solicitor General’s assurance that a high-powered committee chaired by the Cabinet Secretary would consider the discriminatory impacts faced by queer couples (e.g., benefits tied to “spouse/family”) and recommend solutions. Both the CJI’s and the majority opinions endorse this pathway.
Transgender persons’ marriages: Transgender persons who enter heterosexual relationships can marry under existing marriage laws (including personal laws). Interpretations limiting marriage to only “biological” men/women are rejected (per all opinions).
Adoption (split):
- Chief Justice’s view: Regulation 5(3) of the Adoption Regulations (requiring a “stable marital relationship” for joint adoption) is ultra vires and violative of Articles 14 and 15; read down to allow unmarried couples (including queer couples) to jointly adopt. Gendered forms to be neutralized.
- Majority view: The regulation stands. Joint adoption by unmarried couples cannot be judicially mandated given the legal architecture that protects children’s interests post-adoption (e.g., maintenance, custody) is anchored to marriage. Nevertheless, the State should examine the regime to mitigate the discriminatory impact on children and families in de facto situations.
Directions against coercion/violence: The majority directs the State to ensure queer couples’ cohabitation rights are not interfered with and to cease involuntary “conversion” therapies or medical procedures. The CJI’s opinion goes further with detailed directions to governments and police, but those extended directions did not command a majority.

Analysis

Precedents Cited and Their Influence

NALSA v. Union of India (2014): Recognized the right to self-identified gender and full constitutional protection for transgender persons. Here, it underpins the holding that transgender persons in heterosexual relationships can marry under existing law, and frames the rights-bearing status of transgender persons under the Transgender Persons (Protection of Rights) Act, 2019.
Justice K.S. Puttaswamy (Privacy) (2017): Enshrines privacy as a fundamental right, with negative (non-interference) and positive (enabling conditions) dimensions. This decision supports protection of intimate choices—partner selection, cohabitation, and decisional autonomy. However, it does not mandate the State to create a marriage or marriage-like legal status.
Navtej Singh Johar (2018): Decriminalized consensual same-sex relations. The Court moves from “freedom from criminalization” to “freedom to live with dignity and form intimate associations,” but the majority limits further extension: Navtej does not compel judicial creation of a marriage regime.
Shafin Jahan (2018) & Shakti Vahini (2018): The State must protect adult choice in marriage/relationships against familial or community interference. The principle is extended here to queer couples’ right to cohabit safely—but not to create a right to marry.
Vishaka (1997) & Common Cause (2018): Petitioners invoked these to justify normative guidelines where law is absent. The majority distinguishes them; those involved regulating conduct to enforce existing rights (e.g., workplace dignity, passive euthanasia), not creating a new institution (marriage/civil union) requiring wide legislative structuring.
Foreign precedents (e.g., Ghaidan (UK) & Fourie (South Africa)): Declined. Those courts relied on statutory or constitutional interpretive mandates not present in India; and the legislative canvass/recognitions in those jurisdictions were materially different.

Core Legal Reasoning

1) Article 32, Judicial Review and Separation of Powers

All opinions reaffirm Article 32’s breadth but insist on institutional limits. The CJI explains the power to enforce fundamental rights (including issuing positive orders) and the role of courts in democracy. The majority (Justice Bhat, concurring with Justice Narasimha) emphasizes that creating a new legal status (marriage/civil union) is a polycentric, policy-laden function which courts must not usurp. The Court can protect intimate choices and direct protection from harm, but cannot design a legislative architecture for marriage/civil unions through interpretation.

2) Positive vs Negative Rights; Unenumerated Rights

The CJI articulates an expansive account: fundamental rights have both negative (non-interference) and positive (enabling conditions) postulates; unenumerated rights can be inferred where necessary to realize enumerated rights. Applying that, the CJI recognizes a right to enter into a “union” as part of dignity, autonomy, expression, association, residence, conscience, and life. The majority accepts the protection dimension (choice, cohabitation, protection from coercion) but cautions that a “right to union” cannot morph into a judicially enforceable obligation to confer legal/legislative status and a bouquet of spousal entitlements.

3) “Right to Marry”: Not Fundamental

The Bench unanimously holds that the Constitution does not expressly recognize a fundamental right to marry. Prior cases (Puttaswamy, Navtej, Shafin Jahan, Shakti Vahini) did not decide this question; they protected choice and dignity, not a right to a state-conferred status. Marriage flows from statute/custom. Recognizing it as a fundamental right would require the State to create a comprehensive legislative framework—beyond judicial remit.

4) The SMA/FMA Cannot be Read to Include Same-Sex Marriages

Text and scheme: The SMA’s conditions, degrees of prohibited relationships (gender-specific schedules), age thresholds (“male/female”), gendered remedies (alimony, maintenance), and succession linkages (to ISA/HSA) are inherently heteronormative. Reading gender-neutral terms would unravel the scheme and trigger conflicts elsewhere.
Workability: Petitioners’ “workability charts” would require extensive redrafting across multiple statutes—classic judicial legislation.
FMA: The same logic applies; age/degrees conditions are gender-structured and rest on the SMA framework.

5) Cohabitation and Protection from Coercion

The Court gives robust protection to queer relationships: adult queer couples have the right to be together. The State must ensure their cohabitation is not interfered with by families or authorities; police must protect them and cease involuntary medical/“conversion” practices. This is a clear, unanimous and enforceable direction—an immediate, positive outcome of the case.

6) Committee on Entitlements and Indirect Discrimination

The majority flags the indirect discrimination queer couples suffer because benefits (pension, insurance, compensation, tax, medical decisions, next-of-kin) are tied to marital “spouse/family”. Without creating a civil union regime, the Court records the Union’s assurance to set up a high-level committee to recommend ways to extend such entitlements in a constitutionally compliant manner, post stakeholder consultations (including States/UTs and queer communities).

7) Transgender Persons’ Marriages Recognized

Reading the Transgender Persons (Protection of Rights) Act, 2019 harmoniously with marriage statutes, the Court clarifies: transgender men and women can marry a person of the opposite gender under prevailing laws (including personal laws). The term “bride/bridegroom”, “male/female”, “wife/husband” should not be restricted to cisgender categories. This is an important, concrete holding.

8) Adoption (Regulation 5(3))—Split Outcome

Chief Justice: The requirement of a “stable marital relationship” as a condition for joint adoption is ultra vires Section 57 JJ Act and violates Articles 14 and 15. It disproportionately burdens queer couples who cannot marry; unmarried couples can form stable households and should not be excluded per se. The Regulation is read down by deleting “marital”, and gendered forms are neutralized.
Majority: The Regulation stands. The post-adoption legal framework (maintenance, custody, guardianship, succession) is marriage-centric; allowing joint adoption without accompanying reform risks the child’s best interests in case of relationship breakdown. However, the State should urgently review the adoption framework to address de facto families and mitigate discriminatory impact on queer-led and unmarried households.

Impact

No immediate marriage equality under judicial fiat: Same-sex/same-gender couples cannot marry under the SMA/FMA as a matter of current law.
Strong protection for queer cohabitation: Police and state machinery must ensure that adult queer couples are not harassed or coerced by families or authorities. Involuntary medical interventions and “conversion therapy” must cease.
Administrative reform pathway: The Union’s Committee—endorsed by the Court—now has the Court’s imprimatur to recommend extending benefits/entitlements that are today gated by “spouse/family” to queer couples. This is the actionable bridge between decriminalization (Navtej) and social citizenship.
Transgender persons can marry heterosexually: A tangible, immediately usable declaration providing legal certainty for transgender men and women in heterosexual unions.
Adoption remains constrained (for now): Joint adoption by unmarried couples, including queer pairs, remains barred under the majority view. But the judgment strongly invites executive/legislative re-examination to protect the best interests of children in de facto families.
Legislative agenda sharpened: The case powerfully spotlights the need for:
- Comprehensive anti-discrimination legislation covering sexual orientation and gender identity;
- Neutral and inclusive definitions of “family/spouse/next of kin” across welfare and benefits regimes;
- Child-centric reforms to adoption and guardianship law that account for diverse families.

Complex Concepts Simplified

Fundamental vs statutory right to marry: A fundamental right is constitutionally guaranteed and enforceable against the State. The Court holds marriage is created and shaped by statute/custom, not by the Constitution. Hence, no fundamental right to marry.
Negative vs positive rights: Negative rights prevent State interference (e.g., “do not criminalize my intimacy”); positive rights require State action to enable a right (e.g., “create a civil union law”). The Court protects negative rights fully here, but declines to create positive rights that would rewrite marriage law.
Reading down vs judicial legislation: Reading down is a narrow interpretive tool to save a statute by giving it a constitutional meaning. Judicial legislation re-writes or re-designs statutory schemes—impermissible. The SMA/FMA would require the latter to include same-sex marriages.
Indirect discrimination: A facially neutral rule (e.g., “benefits to spouses”) can disproportionately exclude a group (queer couples who cannot marry). The Court calls on the State to fix such exclusions through policy/law.
Sex, gender, sexual orientation: Sex is anatomical; gender is identity; sexual orientation is whom one is attracted to. Transgender men/women may be heterosexual or otherwise. The Transgender Act protects gender identity; Navtej protects sexual orientation.
Prohibited degrees: Relationship categories within which marriage is barred (e.g., close kin). SMA’s schedules set these by sexed categories. Their gendered design is one reason the law resists gender-neutral reading.

Conclusion: Key Takeaways and the Road Ahead

The Supreme Court has drawn a principled line: it will protect queer intimacy and choice, not create a marriage/civil union framework by judicial fiat. The Court reaffirms separation of powers.
The judgment is not a defeat for queer rights; it is a redirect. It compels the executive and legislature to do the hard, democratic work of designing inclusive family law and welfare frameworks.
Two immediate wins are significant: robust protection for queer cohabitation and affirmation that transgender men and women can marry a partner of the opposite gender under existing law.
The Union’s Committee is now the hinge on which tangible improvements to everyday life for queer couples will swing—inheritance, pensions, insurance, medical decision-making, next-of-kin status, housing, and more.
On adoption, while the majority preserves the status quo, it amplifies the need to protect children in diverse families—an invitation for urgent executive action.

Supriyo is now the definitive Indian authority on (a) the absence of a constitutional right to marry, (b) the limits of constitutional adjudication in re-writing civil marriage law, (c) the constitutional protection of queer cohabitation, and (d) the legal capacity of transgender persons to marry heterosexually. It also operationalizes a forward path—through a government-led reform process—to align the welfare state with the lived realities of queer citizens.