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New Delhi: The Central government has opposed the petitions filed before the Supreme Court by gay couples seeking recognition of same sex marriage under law.
In an affidavit filed before the top court on Sunday, the Central government said that living together as partners and having sexual relationship by same sex individuals is not comparable to the Indian family unit concept which involves biological man and biological woman with children born out of such wedlock.
The latter requires 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 said.
“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 – who are reared by the biological man as father and the biological woman as mother,” the affidavit stated.
The parties entering into marriage creates an institution having its own public significance as it is a social institution from which several rights and liabilities flow, it was submitted.
Hence, seeking a declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition, the government underscored.
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. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same sex marriage,” the government said.
The affidavit was filed in response to a batch of petitions seeking that the right to marry a person of one’s choice should extend to LGBTQIA+ citizens as well.
A bench of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala had earlier transferred all petitions seeking recognition of same sex marriage pending before several High Courts to itself.
The Centre in its affidavit contended that the registration of marriage of same sex persons will result in violation of existing personal as well as codified law provisions such as ‘degrees of prohibited relationship’, ‘conditions of marriage’ and ‘ceremonial and ritual requirements’ under personal laws governing the individuals.
“The intent of the Legislature was limited to the recognition of a legal relationship of marriage between a man and a woman, represented as a husband and wife. The prayers of the Petitioners, in PIL/Writ jurisdiction clearly seek to re-write the legislative text and intent under various codified statutes governing marriage and other issues ancillary thereto,” the affidavit said.
Citing the provisions of the Domestic Violence Act, the Centre submitted that it is impossible to make the above quoted and other statutory provisions workable in a same-sex marriage.
“It is not whether relationships in the nature of the ones pleaded by the petitioner can be fitted in the present legal framework. 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 impermissible for the Hon’ble Court to override the same,” it was submitted.
The government further clarified that though same sex relations are not unlawful but State only recognises heterosexual relationship for the mode of marriage.
“The State does not recognise these other forms of marriages or unions or personal understandings of relationships between individuals in a society but the same are not unlawful,” the affidavit stated.
One of the petitions was filed by Supriyo Chakraborty and Abhay Dang, two gay men living in Hyderabad.
Supriyo and Abhay have been a couple for almost 10 years. They both contracted COVID-19 during the second wave of the pandemic and when they recovered, they decided to have a wedding-cum-commitment ceremony to celebrate the ninth anniversary of their relationship.
However, despite the same, they do not enjoy the rights of a married couple, the plea pointed out.
It was also contended that the Supreme Court in the Puttaswamy case, held that LGBTQIA+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens.
Another petition filed by gay couple Parth Phiroze Mehrotra and Uday Raj said that non-recognition of same-sex marriages is violative of the right to quality under Article 14 and the right to life under Article 21 of the Constitution.
The affidavit by the Union of India has been drafted by Advocates Kanu Agrawal and Gaurang Bhushan. It has been settled by Solicitor General of India Tushar Mehta.
