Centre opposes same-sex marriage, says it ‘can’t be compared to Indian family unit’

The Centre on Thursday told the Delhi High Court that in spite of decriminalisation of homosexuality under Section 377 of the Indian Penal Code, same-sex marriage was not a fundamental right in the country, Bar and Bench reported. In an affidavit on a batch of petitions on the matter, the Centre also submitted that a same-sex couple living together as partners and having a sexual relationship was not comparable with an “Indian family unit”.

A bench of Justices Rajiv Sahai Endlaw and Amit Bansal had asked the Centre to file its response against three petitions seeking recognition of same-sex marriages under the Special Marriage Act, Hindu Marriage Act and Foreign Marriage Act. On Thursday, four more people from the LGBTIQ community approached the Delhi High Court seeking similar provisions, according to PTI.

Solicitor General Tushar Mehta, appearing for the Centre, submitted the affidavit in response to the earlier pleas and sought time to respond to the fresh petitions.

The matter will next be heard on April 20.

Opposing same-sex marriages, the Centre in its affidavit said that while marriage dealt with two private individuals, “it cannot be relegated to merely a concept within the domain of privacy of an individual,” the Hindustan Times reported. The Centre went on to define what an “Indian family unit” meant, and contented that a same-sex couple did not fit that definition.

“Living together as partners and having sexual relationship by same sex individuals 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 stated, according to Bar and Bench.

It further said that a fundamental right under Article 21 of the Constitution was subject to procedure established by the law, and same-sex marriages were “neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”, according to Bar and Bench. Furthering this argument, the Centre submitted that in a same-sex marriage, it was not possible or feasible to term one of the partners as “husband” and the other as “wife” and so, “the statutory scheme of many statutory enactments will become otiose”, the Hindustan Times reported.

The government further said that in India, marriage had “sanctity” attached to it and the relationship between a “biological man” and a “biological woman” depended upon “age-old customs, rituals, practices, cultural ethos and societal values”, Bar and Bench reported.

“It is submitted that any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country,” the affidavit stated.

The petitions

In separate pleas filed last year, two same-sex couples had sought that the Special Marriage Act and the Foreign Marriage Act should be interpreted to also apply to the marriages of same-sex couples.

Vaibhav Jain and his partner Parag Mehta were denied a certificate of registration of their marriage under the Foreign Marriage Act by the Consulate General of India in New York, while Dr Kavita Arora and her partner Ankita Khanna were not allowed to enter the south district magistrate’s building in East Delhi to seek solemnisation of their marriage under the Special Marriage Act.

Another petition seeking the recognition of same-sex marriages under the Hindu Marriage Act had been filed by Abhijit Iyer Mitra, according to PTI. In October, the Delhi High Court had held that these laws were “gender-neutral” and sought Centre’s response on the matter.

On Thursday, another couple, Meghna Mishra and Tahira, filed another petition seeking that the Special Marriage Act, which requires a “male” and a “female” for solemnisation of a marriage, be declared as unconstitutional unless they are read as “neutral to gender identity and sexual orientation”, PTI reported.