Not in consonance with the 'Indian family concept': Centre opposes same-sex marriages in Delhi HC

The Centre on Thursday opposed a batch of petitions seeking recognition and registration of marriages between same-sex couples and told the Delhi High Court that there is a "legitimate state interest" in limiting recognition of marriages to opposite-sex couples.

Responding to petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, Special Marriage Act and the Foreign Marriage Act, the Centre in an affidavit said that marriage between individuals cannot be treated as a private affair, as they invoke 'age-old customs, rituals, practices, cultural ethos and societal values' of India.

The Centre said recognition of same-sex marriages is not in consonance with the 'Indian family concept' of husband, wife and children, and essentially goes against a 'solemn institution' between 'a biological man and a biological woman'.

It also stated that marriage between two individuals of the same sex is neither recognised "nor is it codified under any statutory laws or uncodified personal laws".

The Centre also said despite that decriminalisation of Section 377 under Indian Penal Code by the Supreme Court, the petitioners cannot claim a fundamental right for same-sex marriage under the laws of the country and that 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."

Stating that "Western ideas without any basis in the Indian constitution" cannot be imported into the Indian context, the affidavit argued, "While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations."

"Statutory recognition of marriage as a union between a man and a woman is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based on its cultural and societal values," the Centre added.

"While a marriage may be between two private individuals having a profound impact on their private lives, it cannot be relegated to merely a concept within the domain of privacy of an individual. It is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of a relationship with which several statutory rights and obligations are attached," it has told the court.

One of the petitions was filed by two Delhi-based mental health professionals, Dr Kavita Arora and Ankita Khanna on October 5, 2020. When the couple approached a marriage officer in Delhi to get married last year, the officer had refused to solemnise their marriage under the Special Marriage Act, because they are a same-sex couple. They demanded the registration of their marriage as well as a declaration that the Special Marriage Act is unconstitutional as long as it does not provide for the solemnisation of marriage of a same-sex couple.

Another petition was filed by US-based Vaibhav Jain and Parag Mehta, demanding registration of their marriage under the Foreign Marriage Act. Jain is an Indian citizen, while Mehta is an overseas citizen of India, who were married in Washington in a court ceremony. After that they had a traditional Jain wedding in March 2019. Following this, they approached the Indian Consulate in New York in March 2020 for the registration of their marriage under the Foreign Marriage Act. But they were refused registration. They say that the Foreign Marriage Act should be read to recognise marriages between consenting adults regardless of the gender and sexual orientation of the parties.

The government also has said the question is not whether the same-sex marriages can be fitted in the present legal framework but "rather the question is that when the legislative intent, with regard to limiting the legal recognition of marriage and the benefits associated with such legal recognition, are limited to heterosexual couples, it is not permissible for the Hon’ble Court to override the same".


Source: thewire.in, indianexpress.com

Written by Siddhant Sharma