New Delhi: Same-sex marriage is against the “Indian notion of marriage” that “necessarily and inevitably presupposes a union” between a biological man and a biological woman only.
It was with this assertion and reliance on the religious definition of a marriage that the Modi government Sunday opposed a batch of petitions in the Supreme Court seeking a direction to the government to allow registration of same-sex marriages.
The central government claimed recognition of marriage between homosexual couples would also lead to a deviation from the Indian concept of a family unit, in which the children born out of the union between a biological man and biological woman are reared by both as father and mother.
The institution of marriage has a sanctity attached to it, and in major parts of the country, is regarded as a “sacrament, a holy union and a sanskar” and this relationship essentially between a man and woman is “socially, culturally and legally ingrained”, the government submitted in its affidavit.
Hence, the court ought not to disturb or dilute the concept of marriage by judicial interpretation, as it would change the entire legislative policy that is “deeply embedded in religious and societal norms”, the government said.
Rejecting the petitioners’ contention that marriage is a private affair, the government contended that it is a concept emanating from personal laws of citizens. Despite statutory recognition of the relationship between a man and woman, marriage depends upon age-old customs, rituals, practices, cultural ethos and societal values. Therefore, marriage has more than personal significance and simply cannot be claimed as a private matter between two individuals.
It is an important institution that provides for “security, support and companionship of our society and bears an important role in rearing children and their mental and physical upbringing also,” the affidavit said.
It added, “the celebration of a marriage gives rise to …the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible”.
However, the government clarified that though the state recognised heterosexual relationships for marriage, same-sex relationships are not unlawful. Being in a legal relationship isn’t akin to a marriage and the same cannot be claimed as a fundamental right, as demanded by petitioners, it submitted.
The affidavit quoted the 2018 SC judgment that decriminalised section 377 of the Indian Penal Code, a Victorian-era law that criminalised sex “against the order of nature”, including physical relationship between same-sex couples, to say that even the top court has drawn a distinction between a marriage and a union. Though marriage is a union, but as a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional, the SC had noted in the 2018 judgment in Navtej Johar’s case.
While aspects of marriage go codified with evolution of jurisprudence, the conduct of parties and their inter-sex relationship is always governed and circumscribed by personal laws. In some cases, customary laws were even codified, the government said.
“Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman”, maintained the government in its response.
Registration of marriage of same sex people would result in violation of existing personal as well as codified law provisions, such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals.
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‘Marriage between biological man, biological woman’
The 56-page affidavit provides an insight into the legislative intent behind marriage laws in the country, which, the government maintained, are governed by personal and codified laws relatable to customs of various religious communities.
According to it, the penal law of India describes marriage as a relationship between a biological “man” and a biological “woman” only.
Similarly, the Hindu Marriage Act and other family laws and penal laws at numerous places provide clear indications towards the same through specific references to opposite sexes referred as “husband” and “wife; “male” and female”; “bride” and “bridegroom”; “father” and “mother”; “minor son”, “minor daughter”; “him” and “her”.
This is an indication that in India, “marriage is a bond between a biological man and a biological woman only and that is the legislative policy of the law-making body”, the affidavit added.
In a same-sex marriage, “it is neither possible nor feasible to term one as “husband” and the other as “wife” in the context of legislative scheme of various statutes, it said. Resultantly, the statutory scheme of many enactments will become otiose (serving no practical purpose), (and it will be) impossible to make these laws workable in same-sex marriages.
The government cautioned that any interference with the existing set-up could cause “complete havoc with the delicate balance of personal laws in the country and in accepted societal values.”
Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, apart from being completely contrary to the consistent legislative policy, based on cultural ethos and societal values of the country, it added.
‘Leave it to legislature’
Since the legislative intent clearly limits legal recognition of marriage and benefits associated with it to heterosexual couples, the petitioners cannot ask the court to change or rewrite the legislative policy, said the government.
“It is submitted that such relationships can be governed, regulated, permitted or proscribed only by a law made by the competent legislature. It is only in such a competent legislature that the legislative wisdom to enact a law which would govern human relationships in the context of societal values and national acceptability vests,” submitted the affidavit.
None of the codified statutory laws or uncodified personal laws accept the institution of marriage between two individuals of the same gender. Any recognised deviation of this human relationship – essentially between a man and a woman – can occur only before the competent legislature, emphasised the government affidavit.
Moreover, marriage brings with it the right to adopt and other ancillary rights. It is, therefore, necessary that such issues are to the competent legislature, where social, psychological and other impacts on society, children can be debated.
The government also underlined that there can be no fundamental right for recognition of a particular form of social relationship.
“While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State,” it said, adding, “Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same sex marriage.“
(Edited by Smriti Sinha)
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