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The Central Government has opposed same sex marriage in an affidavit before the Delhi High Court in a plea seeking recognition of same-sex marriages under various personal laws, reported LiveLaw. It said that there is a “legitimate state interest” in limiting recognition of marriage to persons of opposite sex only.
The affidavit reads, “The 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 response also states that despite the decriminalisation of section 377 of the Indian Penal Code, that held same sex relationships to be illegal, the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country. A report in Bar & Bench said that the affidavit further submitted, “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.”
While asserting that legal recognition of same sex marriage is to be decided by the legislature and not through judicial adjudication, the affidavit states that, “Marriage is essentially a socially recognised union of two individuals which is governed either by uncodified personal laws or codified statutory laws.”
Further, the central government has also submitted that the considerations of social morality are relevant in considering the validity of legislation and it is only for the legislature to judge and enforce such social morality and public acceptance based on Indian ethos.
According to Bar & Bench, the Union Government further said that the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be extended to include the fundamental right for same-sex marriage.
“The dictum of Navtej Singh Johar, 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”, said the affidavit. The Centre has also told the court that “western decisions” sans any basis in Indian Constitutional Law Jurisprudence cannot be imported in the Indian context.
Equal rights activist Harish Iyer, who was also one of the people who intervened in the 377 case in the Supreme Court, told SabrangIndia, “While I am grateful to the support of some politicians to the rainbow cause, they are exceptions rather than the norm. Today’s stance by the government reiterates that the LGBTQIA community won because of our own sustained campaign, and not because of some parties and politicians who scrambled to appropriate credit for it. In a nation that boasts of a Constitution where every single soul deserves all rights and dignity, our love and our lives will not be left to the whims and fancies of the majoritarian mindset. While the Parliament has been dodging key issues related to the community, and failed to pass empowering legislations, it is the courts that have taken us a step closer to life, freedom, love and humanity.”
The Delhi High Court has been seized with few petitions urging that the Special Marriage Act and the Foreign Marriage Act be interpreted to also apply to the marriages of same-sex couples. In November last year, the Bench of Justices Rajiv Sahai Endlaw and Asha Menon had issued a notice to the Union Government in the matter.
The matter will now be taken up on April 20, 2021.
Related:
Delhi HC issues notice to Union in a plea to recognise same sex marriage
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Protect same sex couple facing resistance: Allahabad HC