Same-Sex Marriage and the Special Marriage Act: Supriyo

Because the Special Marriage Act is a secular law open to all, it was the natural focus of the petitions seeking recognition of same-sex marriage in India. The petitioners asked the Supreme Court to read the Act in a gender-neutral way, or to strike down its gendered provisions. In Supriyo v Union of India (2023), a five-judge Constitution Bench declined, holding that any change is for Parliament, while affirming the rights of queer persons to choose partners and live together. This note covers the background, the holdings and what remains open.

1. Background

Figure 1: From NALSA to Supriyo

• The challenge. The Act uses gendered terms, such as 'male' and 'female' in s.4(c), 'wife' and 'husband' in the declarations, and wife-specific provisions on alimony. The petitioners argued that excluding same-sex couples violated Articles 14, 15, 19 and 21.
• Relief sought. A declaration that the Act applies to all couples regardless of gender, or that its gendered provisions be read down; and recognition of related rights, including adoption.

2. Supriyo v Union of India (2023)

Figure 2: The holdings

• Bench. Chief Justice D.Y. Chandrachud and Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha; judgment delivered on 17 October 2023.
• No fundamental right to marry. All five judges held that there is no unqualified fundamental right to marry; marriage is an institution created and regulated by statute.
• The Act. The Court unanimously declined to strike down the Act or to read words into it. Striking it down would remove the only secular route for interfaith couples, and reading in gender-neutral terms would require recasting many linked laws, a task for Parliament.
• Transgender persons. Transgender persons in heterosexual relationships have the right to marry under existing law, including personal laws.
• Majority and minority. By 3:2, the Court declined to recognise civil unions and did not strike down the adoption regulations that exclude unmarried couples. The Chief Justice and Justice Kaul would have recognised a right to form unions and allowed adoption by queer couples.
• Committee. The Court recorded the Union's statement that it would set up a committee under the Cabinet Secretary to examine the rights and entitlements of queer couples, such as joint bank accounts, ration cards and medical decisions.

3. After Supriyo

• Review. Review petitions against the judgment were dismissed in January 2025.
• Rights affirmed. Queer couples' right to cohabit and choose partners free from harassment remains protected, and the Court directed the police and authorities against coercion and discrimination.
• Open questions. Recognition of same-sex marriage, civil unions and related rights lies with Parliament.

4. Frequently Asked Questions

Can same-sex couples marry under the Special Marriage Act?

No. In Supriyo v Union of India (2023), the Supreme Court declined to read the Act in a gender-neutral way or to strike down its provisions, holding that recognition of same-sex marriage is a matter for Parliament.

Can a transgender person marry under the Special Marriage Act?

Yes, in a heterosexual relationship. The Court in Supriyo unanimously held that transgender persons in heterosexual relationships have the right to marry under existing laws, including the Special Marriage Act and personal laws.

5. Related Topics

• Topic 26: Interfaith and Inter-caste Marriages: Constitutional Protection. Choice of partner under Article 21.
• Topic 1: Nature, Object and Scheme of the Act. Who may marry under the Act.