'Only husband and wife make a family': Centre opposes same-sex marriage in Delhi HC

FP Staff
·7 min read

Opposing a clutch of pleas in the Delhi High Court that sought recognition of same-sex marriages across the country, the Centre in an affidavit stated that there is no fundamental right to same-sex marriage despite homosexuality being decriminalised and that same-sex couples living together as partners and having a sexual relationship "can't be compared to the concept of the Indian family", according to several media reports.

The Centre's affidavit comes after four people belonging to the gay and lesbian community urged the Delhi High Court to declare that marriages between any two persons irrespective of their sex be solemnised under the Special Marriage Act (SMA).

A bench of justices Rajiv Sahai Endlaw and Amit Bansal had sought the response of the Centre on the joint plea by three men and a woman, who urged the court to also declare that the SMA applies, regardless of sex, to any two persons who wish to marry by reading down any gender or sexuality-based restrictions contained in the Act.

"Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country," the Centre's affidavit read, as per Bar and Bench.

The Centre added that seeking a declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition.

"Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having sexual relationship by same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a 'husband', a biological woman as a 'wife' and the children born out of the union between the two," the affidavit further read, as per the report.

The Delhi government, responding to a similar petition, had earlier stated that there is no provision in the SMA under which two women can be married, but had said that it would be willing to abide by the court's direction.

As per Live Law, the affidavit by Centre further stated that in India, marriage is not just a matter of union of two individuals but a 'solemn institution between a biological man and a biological woman'. It then went on to give the definition of marriage as per the Black's Law Dictionary.

The Centre, disputing that the right to marriage falls within an individual's right to privacy, added: "While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations are attached."

The Centre also told the court Western decisions sans any basis in Indian constitutional law and jurisprudence cannot be imported in the Indian context, as per Live Law.

In their plea, filed through advocates Meghna Mishra and Tahira from Karanjawala and Co law firm, the four petitioners have also sought that the provisions in the SMA which require a 'male' and a 'female' for solemnisation of marriage be declared as unconstitutional unless they are read as "neutral to gender identity and sexual orientation".

"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 further stated, according to The Indian Express.

The Centre further added 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".

The latest petition before the court comes in addition to three pleas already before the high court seeking recognition of same-sex marriages under the SMA, Hindu Marriage Act (HMA) and Foreign Marriage Act (FMA).

Meanwhile, the Delhi government had filed its response to one of the petitions moved by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same-sex marriages. It has said that there was no provision in the SMA under which the two women can be married and their marriage be registered.

The latest petition noted that three of the petitioners have gone abroad as Indian laws do not recognise same-sex couples or marriages and such relationships do not enjoy the same benefits as those enjoyed by heterosexual couples.

The fourth petitioner is also contemplating going abroad to be with his partner as laws here do not recognise same-sex relationships, the petition has said.

In the first petition on the issue before the Delhi high court, Abhijit Iyer Mitra and three others have contended that marriages between same-sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise same-sex marriages under the HMA and SMA.

The two other pleas are: one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same-sex marriages and the other by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA). The two women and the two men, who got married abroad, have been represented by senior advocate Menaka Guruswamy and advocates Arundhati Katju, Govind Manoharan and Surabhi Dhar.

The plea by equal rights activists Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi was filed through advocates Raghav Awasthi with Mukesh Sharma. Mitra and others, in their petition, have contended that homosexuality has been decriminalised by the apex court but same-sex marriages are still not being allowed under the HMA provisions.

This is despite the fact that the said Act does not distinguish between heterosexual and homosexual marriage if one were to go by how it has been worded. It very clearly states that marriage can indeed be solemnised between "any two Hindus". In this view of the matter, it can be stated that it is against the constitutional mandate of non-arbitrariness if the said right is not extended to homosexual apart from heterosexual couples, the petition has said.

The denial of this right to homosexual couples is also against the mandate of various international conventions that India is a signatory to, the plea said.

The Centre had earlier told the high court that marriage between same-sex couples was "not permissible" as it was not recognised by "our laws, legal system, society and our values".

The petition by Mitra has said the case for extending the same right of marriage to 'lesbian, gay, bisexual and transgender (LGBT)' persons as those enjoyed by everyone else is neither radical nor complicated and rests on two fundamental principles that underpin International Human Rights Law: equality and non-discrimination.

The two women petitioners, aged 47 and 36, have contended that not being allowed to get married has denied them several rights such as owning a house, opening a bank account, family life insurance, which opposite sex couples take for granted.

The two men who got married in the US have said that their marriage was not registered under the FMA by the Indian consulate as they were a same-sex couple.

"The Indian consulate would have registered the marriage of any similarly placed opposite sex couple," they have contended.

The couple, in a relationship since 2012 and got married in 2017, have also claimed that during the COVID-19 pandemic, non-recognition of their marriage by the laws here continues to disentitle them to travel as a married couple to India and spend time with their families.

With inputs from PTI

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