Context:

• This article is based on an Editorial “From same sex marriage to adoption rights for queer couples: Key takeaways from SC verdict” which was published in the Times of India. Recently, the Supreme Court of India refused to grant legal recognition to same sex marriage under the Special Marriage Act, mentioning that it is within Parliament’s ambit to change the law.

What are the key takeaways from the Supreme Court verdict on Same Sex Marriage?

• On Same Sex Marriage: The Court was unanimous in holding that there is “no unqualified right” to marriage and same sex couple can’t claim it as a fundamental right under constitution.
• On Civil Union: The right to enter into a Union includes the right to choose one’s partner and the right to recognition of that union. However, any change in the regime of the Special Marriage Act is required by the Parliament to decide. 
• Rights of Transgender Persons
  • Right to Marry: The transgender persons in heterosexual relationships have the right to marry as per the existing statutory laws or personal laws. 
  • Registration under Marriage Act: A transgender person could be in a heterosexual relationship, a union between a trans-persons could be registered under the Special Marriage Act and other existing laws.
• Rights of Queer Couples on Adoption
  • Discriminatory Provisions: The guidelines of the Central Adoption Resource Authority (CARA), prohibited unmarried and queer couples from adoption and believed it as unconstitutional and illegal.
  • As per, Regulation 5(3) of CARA “no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship except in the cases of relative or step-parent adoption”.
    • A queer person can adopt only in an individual capacity. This has the effect of reinforcing the discrimination against queer community.
  • Challenge to this Discriminatory Provisions
    • Against Constitutional Values: These adoption regulations are violative of the Constitution for discrimination against queer couples.
    • Stability Provider to a Child: Law cannot assume that only heterosexual couples can be good parents. There is no evidence to prove that only a married heterosexual couple can provide stability to a child.

Also read: Marriage Registration Rules

The Path Ahead

Prevent Discrimination: The Union government and state governments must ensure there is no discrimination against the queer community.

• • It should be ensured that there is no discrimination in access to goods and services for the queer community. 
• Awareness: There is a need to sensitize the public about queer rights. 
• Time for Legislation: The Union and state governments must create a guideline for queer community to prevent their harassment. 
• Safety: The government must create safe houses for queer couples. 
• No Forceful Conversion: The government also must ensure inter-sex children are not forced to undergo operations and any hormonal therapy. 
• Right to Equality & Respect: There shall be no harassment to queer community by summoning them to the police station solely to enquire about their sexual identity. Police should conduct a preliminary enquiry before registering an FIR against a queer couple over their relationship.

Also read: Why Restrict Single Women from Surrogacy: Delhi HC to Centre

Conclusion:

Failure of the state to recognise the bouquet of rights flowing from a queer relationship amounts to discrimination and hence, as suggested by the apex court, it is the high time to set up a committee to address “genuine humane concerns” of same-sex couples without going into the issue of legalizing their marriage. 

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