The Centre on Thursday, 25 February, opposed pleas seeking recognition of same-sex marriage, citing the concept of the Indian family system. The matter will be heard next on 20 April.
“Living together as partners and having sexual relationship with same sex individual is not comparable with Indian family unit concept of a husband, wife and children, which necessarily presuppose a biological man as 'husband', a biological woman as 'wife' and children born out of union," the Centre reportedly said in their reply.
“Courts cannot give legal recognition to such marriages when statute does not allow it,” the Centre added. The Delhi government, meanwhile, has reportedly said the court can decide the way forward.
Earlier, Justices Rajiv Sahai Endlaw and Amit Bansal, hearing the pleas seeking recognition of same-sex marriages under the Hindu Marriage Act, Special Marriage Act, and Foreign Marriage Act, asked if the Centre’s response will be applicable to all petitions.
Solicitor General Tushar Mehta replied in the affirmative, saying that he believed that the “issue is common”.
Back in October and November 2020, the high court had issued a notice to the Centre on three pleas regarding the legalisation of same-sex marriages. A bench of Justices Rajiv Sahai Endlaw and Sanjeev Narula was supposed to hear the petitions on 8 January, but adjourned them to give the Centre time for its replies.
Same-Sex Marriage Can't Be Claimed As Fundamental Right
Union of India started its affidavit by claiming that same-sex marriage can’t be claimed as a fundamental right under the Indian Constitution. To substantiate it, a paragraph from the Navtej Johar judgment has been cited, which states that:
There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage though marriage is a union.Supreme Court of India
Therefore, the Central government has argued that when it comes to marriage, divorce, or adoption, “either the personal laws or codified law occupies the fees”. It is argued that Article 21 cannot be expanded to include same-sex marriages as the said provision is subject to the procedure established by law.
Only Parliament Can Decide On Legalising Same-Sex Marriages
Unlike the Delhi government, the Centre has maintained that the legalisation of same-sex marriages can’t come from the courts. This “power” lies in the domain of the Parliament, which shall enact a law “governing human relations” in the context of “societal values” and “national acceptability”.
It is argued in the affidavit that if the constitutional court goes ahead with allowing same-sex couples to marry, it would amount to the “creation” of rights instead of “recognising existing rights”, violating the principle of separation of powers. It contends:
The question as to whether such a relationship be permitted to be formalised by way of alegal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.
Marriage Can Only Be Between A Man and A Woman
The Central government believes that in India, a marriage is not just a union between two individuals, but a solemn institution between a “biological” man and a “biological” woman.
It is further claimed that marriages can’t be relegated to a domain of privacy, rather, it’s a public concept. Further, it is argued that marriage is a social institution that bestows joint responsibility on the spouses to ensure “proper” psychological and mental growth of their children in the most “natural way”.
Who Are the Petitioners?
One petition, filed by members of the LGBT community Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani, argues that the conception of marriage under the Hindu Marriage Act (HMA) allows for same-sex marriages. “Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act,” the petitioners contend.
They suggest that there is no specification anywhere in the Act that this has to be between a Hindu man and a Hindu woman, and so it is illegal for authorities to refuse to register same-sex marriages under the HMA.
The other two pleas operate on different grounds, instead arguing that registration of same-sex marriages should be possible under the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA).
The SMA petition has been filed by two women, Kavita Arora and Ankita Khanna, who have been living as a couple for the last eight years. They tried to get married under the SMA in September 2020, but the relevant court officer refused to do so.
They argue that this is discriminatory on the grounds of sexual orientation, which is impermissible under Article 15 of the Constitution, citing the Supreme Court’s ruling in 2018 striking down Section 377 of the Indian Penal Code (IPC).
The FMA petition was filed by two men, Vaibhav Jain and Parag Vijay Mehta. They got married in the USA in 2017, but when they approached the consulate to register their marriage under the FMA, their request was refused. They have raised similar arguments regarding discrimination and other violations of constitutional protections, citing the Section 377 judgment.
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