Same-sex marriage: Supreme Court says concept of marriage has evolved

Deliberating on the issue of whether a person has a right to marry, the Bench observed it has to start with the premise that there is no unqualified right

New Delhi: The Supreme Court said on Tuesday it has to be alive to the fact that the concept of marriage has evolved and must accept the basic proposition that marriage itself is entitled to constitutional protection as it is not just a matter of statutory recognition.

A five-judge Constitution Bench headed by Chief Justice DY Chandrachud, while hearing arguments on a batch of pleas seeking legal validation for same-sex marriage, said it would be “far-fetched” to argue that there is no right to marry under the Constitution, which itself is a “tradition breaker”.

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“There cannot be any denial of the fact that the State has a legitimate interest in regulating the marriage. Undoubtedly. That’s how the State regulates the forms in which you can enter into a marriage,” said the Bench, which also comprised Justices SK Kaul, SR Bhat, PS Narasimha, and Hima Kohli. “The State has various other interests so it regulates facets of a marriage. But we must accept the basic proposition that marriage itself is something which is entitled to constitutional protection and it is not just a matter of statutory recognition,” the Bench observed, in the course of the hearing that continued on the eighth day.

Deliberating on the issue of whether a person has a right to marry, the Bench observed it has to start with the premise that there is no unqualified right. It said the right to free speech, the right to association, the right to personal liberty, and the right to life are not unqualified and, therefore, there is “no unqualified and absolute right”.