“Gender queerness isn't about status or affluence. Marriage can't remain a static, stagnant or unchanging institution," the Chief Justice of India stated.
Digital Desk: The Supreme Court of India has announced the verdict on same-sex marriage in India. According to CJI DY Chandrachud, a transgender man can marry a woman or vice versa. However, he stated that the directions do not, lead to the creation of an institution.
He declared that the legal recognition of gay marriages rests with the state and federal legislators. "We hereby record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions."
"Contrary to Justice Bhat's judgement, the directions in my judgement do not result in the creation of an institution, rather they give effect to the fundamental rights under Part 3 of the Constitution," he said.
"If a transgender person wishes to marry a heterosexual person, such marriage will be recognised as one would be man and another would be woman, transgender man has the right to marry a woman, transgender woman has the right to marry a man, and transgender woman and transgender man can also marry. If not allowed, it will violate the transgender act," the apex court announced.
“Doctrine of separation of power can't stop courts from enforcing fundamental rights. This court can't make laws but can enforce laws," the CJI said, adding that Homosexuality isn't an urban elitist concept.
“Gender queerness isn't about status or affluence. Marriage can't remain a static, stagnant or unchanging institution," the Chief Justice of India stated.
He added, "I have dealt with the matter of judicial review and the separation of powers, which means each organ performs a different function. Most contemporary democracies do not operate with the classic doctrine in mind. This concept operates in a complex way, and another arm of government is operated under institutional comity."
"The Centre stated that there would be a violation of the separation of powers, but the courts' power for judicial review is also a part of the basic structure and sees that no organ acts in excess of its constitutional authority," he said.
The Chief Justice of India further stated that the top court cannot compel Parliament or state assemblies to establish a new institution of marriage.
“Can't hold SMA unconstitutional just because it doesn't recognize same-sex marriages," he said.
The Chief Justice of India said, "Can't redraft SMA or other legal provisions to substitute "man" and "woman" or "husband" & "wife".. There can't be judicial legislation."
According to DY Chandrachud, "the right to enter into a union must result in the State acknowledging the fulfilment of such a right."
“Right to intimate association has been linked to several articles in the constitution. one is article 19(1)(e).. where one can settle down anywhere and then building their life their also includes right to choose a life partner... right to life under article 21 ensures dignity and privacy. right to intimacy emanates from all of this.. choosing a life partner is an integral part of life and what defines their own identity. the ability to choose partner goes to the root of right to life and liberty under article 21," the judgement read.
CJI Chandrachud noted it’s incorrect to say marriage is a static and unchanging institution. He continues that if the Special Marriage Act is overturned, it will return the nation to the period before Independence.
The Parliament must consider if the Special Marriage Act's legal framework needs to be altered. He said that this Court must be careful not to interfere with legislative matters.
The highest court invalidates a CARA rule that prevents gay couples and unmarried individuals from adopting.
He made it clear that although ensuring gay couples receive some genuine benefits, his decision did not provide same-sex marriages any social or legal status or legal recognition.
"Considering the deeming fiction created by Hindu adoption and maintenance act.. thus all benefits available to a legitimate child of a married couple will flow to the child of an unmarried couple.. further breakdown in relation to the unmarried couple will not alter the status of the child," he said.
Additionally, the CJI directed police officers not to harass queer couples or make them go back to their parents. "A preliminary investigation must be conducted before filing a FIR against a queer couple related to their relationship."
The petitioners have contended that same-sex couples need to be given the same rights as heterosexual couples with regard to spouse status in financial and insurance matters, as well as in decisions about medical care, inheritance, and succession.
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