New Delhi: The central government Thursday submitted before the Delhi High Court that a same sex couple cannot claim fundamental right for their marriage — despite the Supreme Court decriminalising homosexuality in 2018 — saying that marriage in India is a “bond between a biological man and a biological woman”.
The Centre, in an affidavit, said the petitioners “cannot claim a fundamental right for same sex marriage being recognised under the laws of the country”.
It further asserted that the question as to whether same sex marriage can be given legal recognition should be left to the legislature.
“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,” it said.
“The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication,” it added.
The submissions were made in response to a petition filed last year, demanding marriage rights for the gay community under the Hindu Marriage Act, 1955.
This plea has been filed by four members of the LGBTQ+ (lesbian, gay, bisexual, transgender, queer, and others) community — Abhijit Iyer Mitra, a security and foreign policy commentator, Gopi Shankar M., a Tamil Nadu-based intersex activist, who contested the 2016 assembly elections, Giti Thadani, founding member of the Sakhi collective journal of contemporary and historical lesbian life in India, and G. Oorvasi, a transgender activist.
The Centre said “the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to extend to include the fundamental right for a same sex marriage to be recognised under the laws of the country, which in fact mandate the contrary”.
‘Solemn institution between biological man, woman’
The affidavit contended that in India, “marriage is not just a matter of union of two individuals, but a solemn institution between a biological man and a biological woman”.
It denied the petitioners’ submission that the right to privacy includes a fundamental right to marry, asserting that “entering into marriage is to enter into a relationship that has public significance as well”.
“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,” it said.
The affidavit also referred to terms like “bride”, “bridegroom”, “father”, “mothers” etc. used in the laws, to assert that “in India, marriage is a bond between a biological man and a biological woman”.
It, therefore, contended that “there exists a legitimate state interest in limiting the legal recognition of marriage to persons of opposite sexes only”, and that “it is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos”.
‘Petitioners are like any other couple you might meet’
The Delhi HC has been hearing petitions demanding recognition of same sex marriages since last year. The petitions will come up for hearing next in April.
A similar petition was filed on 5 October last year in the Delhi High Court by two Delhi-based mental health professionals, Dr Kavita Arora and Dr Ankita Khanna. According to the petition, they have been living together for the last 8 years.
“The petitioners are like any other couple you might meet, except they are both women,” their plea stated.
The couple tried to get married and approached the marriage officer (the SDM, southeast Delhi, Kalkaji) seeking solemnisation of their marriage under the Special Marriage Act. The plea, however, submitted that the officer refused to register their marriage because they are a same sex couple.
It, therefore, stated that because of exclusion of same sex couples from the Special Marriage Act, “myriad legal rights and protections in matters of succession, taxation, insurance, maintenance, pension, health and marital privileges… are unavailable to unmarried couple”.
They have demanded registration of their marriage as well as a declaration that the Special Marriage Act is unconstitutional as long as it does not provide for solemnisation of marriage between a same sex couple.
No provision under Special Marriage Act: SDM
In response, the SDM, Kalkaji, Dr Atish Kumar told the court he has “acted in accordance with law and presently there is no provision in the Special Marriage Act, 1954 under which the marriage of the petitioners could be registered”.
In an affidavit filed on 17 February this year, Kumar asserted that, therefore, the court needs to consider where he “has any power to solemnise marriage under Special Marriage Act, 1954 as per the wish of petitioners”.
He also demanded to know whether he has the “power to deviate itself from the rules framed under the Special Marriage Act, 1954 which has been enacted by the Parliament”.