Centre pleads against same-sex marriage before Delhi HC; says not “comparable” with Indian family unit

THE Central Government has sought the dismissal of a batch of petitions seeking recognition of same-sex marriages.

In an affidavit filed in the Delhi High Court, the Centre has stated that the institution of marriage between two individuals of the same gender was neither recognized nor accepted in any uncodified personal law or any codified statutory law.

“Seeking declaration for solemnisation/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”, the Centre said.

It claimed that marriage is a bond between a biological man and a biological woman.

Living together as partners and having a sexual relationship by same-sex individuals [which is decriminalised now], the Centre said, was 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.

It added that the fundamental right under Article 21 was subject to the procedure established by law and the same could not be expanded to include the fundamental right for a same-sex marriage to be recognised under the laws of the country which in fact mandates the contrary.

Commenting on the jurisdiction of the court, the affidavit said that the constitutional court could analyze existing rights but could create a new right by the process of judicial adjudication.

It sought to distinguish the decision of the Supreme Court in the Navtej Singh Johar case (Sec.377 matter) and submitted that the said decision did not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contravention of prevailing statutory laws.

“It is submitted that at its very core, the dictum of the judgment stated above, applies to aspects which would be covered within the personal private domain of individuals [akin to right to privacy] and cannot include a public right in the nature of recognition of same/sex marriage and thereby legitimizing a particular human conduct”, the affidavit read.

It said by and large the institution of marriage had a sanctity attached to it and in major parts of the country, it was 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 pleaded.

The question, the Centre said, as to whether such a relationship could be permitted to be formalised by way of legal recognition of marriage was essentially a question to be decided by the legislature and could never be the subject matter of judicial adjudication.

The Leaflet