Same-sex marriages violate societal morality: Govt to SC

Satya Prakash

New Delhi, March 12

Ahead of Monday hearing on petitions seeking recognition to same sex marriage, the Centre has told the Supreme Court that it was not in conformity with societal morality and Indian ethos and would cause a “complete havoc” with the delicate balance of personal laws.

Not a fundamental right: centre

• The matter will come up for hearing before a Bench led by CJI DY Chandrachud on Monday
• The Bench had on Jan 6 transferred to itself all pleas seeking recognition to same-sex marriages pending in high courts
• The government says the fundamental right to life and liberty cannot include any implicit approval of same-sex marriage

In an affidavit filed in the top court, it said the notion of marriage itself necessarily and inevitably presupposed a union between two persons of the opposite sex. This definition was socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation, it submitted.

“It must be kept in mind that granting recognition and conferring rights recognising human relations which has its consequences in law, and privileges, is in essence a legislative function and can never be the subject matter of judicial adjudication,” the Centre said, terming the petitioners’ demand as “wholly unsustainable, untenable and misplaced”.

Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners could not claim a fundamental right for same-sex marriage to be recognised under the laws of the country, it said. However, the affidavit stated that though the Centre limited its recognition to heterosexual relationships, there may be other forms of marriages or unions or personal understandings of relationships between individuals in a society and these “were not unlawful”.

The matter would come up for hearing before a Bench led by CJI DY Chandrachud, which had on January 6 transferred to itself all petitions seeking recognition to same-sex marriages pending in various high courts. The Supreme Court had on November 25, 2022, issued notice to the Centre and the Attorney General on two petitions filed by gay couples seeking recognition for same sex marriages under the Special Marriage Act, 1954. On December 14, 2022, it issued notice to the government on another petition by a same-sex couple married in the US seeking legal recognition of their marriage in India.

Maintaining that family issues were far beyond mere recognition and registration of marriage between persons belonging to the same gender, the Centre said, “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.”

Decisions of western courts without any basis in Indian constitutional law jurisprudence could not be imported in this context, it said, asserting that granting recognition to human relations was a legislative function and could never be a subject of judicial adjudication.

Noting that the institution of marriage between two individuals of the same gender was neither recognised nor accepted in any uncodified personal laws or any codified statutory laws, the Centre said, “Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such human relationship cannot be regarded as just a privacy issue between two adults.”

Even if such right was claimed under Article 21 of the Constitution, such right could be curtailed by competent legislature on permissible constitutional grounds, including legitimate state interest, it said, adding there could not be an untrammelled right under Article 21 and it could not override other constitutional principles. Parliament has framed marriage laws governed by personal laws/codified laws relatable to customs of various religious communities to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences, it said.

While there may be various other forms of marriages or unions or personal understandings of relationships between individuals in a society, the state limits the recognition to the heterosexual form.