On Thursday, the Centre opposed a batch of petitions seeking recognition and registration of same-sex marriages in the country and told the Delhi High Court that living together as partners and having sexual relationship by same-sex individuals is not comparable with the “Indian family unit concept” of a husband, wife and children.
“By and large the institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values,” the Centre told the court in response to the petitions seeking recognition and registration of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act and the Foreign Marriage Act.
The Centre also said despite that decriminalisation of Section 377 under Indian Penal Code by the Supreme Court, the petitioners cannot claim a fundamental right for same-sex marriage under the laws of the country and that Article 21 is subject to the procedure established by law and “the same cannot be expanded to extend to include the fundamental right for a same sex marriage to be recognised under the laws of the country which in fact mandate the contrary.”
It also said that such relationships can be governed, regulated, permitted or proscribed only by a law made by the competent legislature. “The acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication,” the reply filed before the court by Centre reads.
The government also said that the marriage in India is not just a matter between two individuals but “a solemn institution” between “a biological man and a biological woman”.
“While a marriage may be between two private individuals having a profound impact on their private lives, it cannot be relegated to merely a concept within the domain of privacy of an individual. It is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of a relationship with which several statutory rights and obligations are attached,” it has told the court.
Dr Kavita Arora, a psychiatrist and Ankita Khanna, a therapist, in one of the petitions have sought enforcement of the fundamental right of choice of partner, after their application for solemnisation of marriage under the SMA was rejected by a Marriage Officer in Delhi’s Kalkaji on the ground that they are a same-sex couple. The second petition, filed by Parag Vijay Mehta –– an OCI card holder, and Vaibhav Jain, an Indian citizen –– who married in Washington DC in 2017 –– also seeks direction for registration of marriage under the FMA after they were denied the same by the Consulate General of India at New York.
The government also has said the question is not whether the same-sex marriages can be fitted in the present legal framework but “rather the question is that when the legislative intent, with regard to limiting the legal recognition of marriage and the benefits associated with such legal recognition, are limited to heterosexual couples, it is not permissible for the Hon’ble Court to override the same”.
The PIL seeking the recognition of same-sex marriages under the Hindu Marriage Act has been filed by Abhijit Iyer Mitra and three others. The Court last year observed that the statute is gender neutral and the Centre must interpret the law in favour of citizens of India.
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