No fundamental right to same-sex marriage, says Centre
The Centre on Thursday told the Delhi high court that there is no fundamental right to seek recognition for same-sex marriage, claiming that marriage in India is not just a union of two individuals, but an institution between a biological man and woman as a family unit.
“Family issues are far beyond mere recognition and registration of marriage between people of the same gender. Same sex individuals living together as partners and having a sexual relationship (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 government stated in an affidavit, while opposing a clutch of petitions filed by same-sex couples seeking legal recognition for their choice of partner.
Same-sex marriage has found increasing acceptance in countries across the world. Modern, forward-thinking governments should recognise that a people’s sexuality and who they choose to spend their lives with is not something in which states should intervene as long as it is between consenting adults. Citing existing laws or social norms to oppose same-sex marriages amounts to looking back, not ahead.
Urging the court to dismiss the petitions, it said any interpretation other than treating a husband as a biological man and a wife as a biological woman will make all statutory provisions unworkable. The Centre said that marriage is essentially a socially recognised union of two individuals, which is governed either by uncodified personal laws or codified statutory laws, while claiming that any judicial interference will cause “complete havoc with the delicate balance of personal laws”.
Arguing against courts examining the issue, the affidavit says power vests only in the “competent legislature” with the “legislative wisdom to enact a law”, which would govern human relationships. It added that “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 government also cited the Supreme Court judgment decriminalising homosexuality, contending that it only decriminalised a particular behaviour, but didn’t legitimise it.
Referring to the Supreme Court verdict, the government said it “does 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.” In its reply the government maintained that “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” and depends upon “age-old customs, rituals, practices, cultural ethos and societal values.”
The affidavit was filed in response to a plea by equal rights activist seeking recognition of same sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).
Meanwhile, four more people belonging to the gay and lesbian community urged the high court to declare that marriages between any two persons irrespective of their sex be solemnised under the SMA. The latest plea is in addition to three petitions already before the high court seeking recognition of same sex marriages.
A bench of Justices Rajiv Sahai Endlaw and Amit Bansal sought response of the Centre on the joint plea by three men and a woman, who have 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.
