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The Central government has told the Delhi High Court that in spite of decriminalisation of homosexuality under Section 377 of the Indian Penal Code, there is no fundamental right of same-sex marriage. (Abhijit Iyer Mitra & ors vs UOI)
The submission was made in Central Government's affidavit filed in a petition seeking recognition of same-sex marriage under Hindu Marriage Act.
"Despite the decriminalisation of Section 377 of the Indian Penal Code [hereinafter referred to as "IPC"], the Petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country," the affidavit said.
It further said that seeking declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition.
"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," it was submitted.
Personal relationships such as marriages are regulated, permitted or proscribed only by a law made by the competent legislature, Centre said.
"Marriage" is essentially a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws. The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws," it added.
It was thus asserted that legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.
Central Government further said that 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.
"The dictum of Navtej Singh Joharsupra, does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contravention of prevailing statutory laws," the affidavit said.
Pertinently, the Centre submitted that marriage in India is regarded as a sacrament and depends on age old customs, rituals and cultural ethos and societal values.
"By and large the institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values.."
Marriage of same sex persons would violate the existing personal as well as codified law, the Centre claimed seeking dismissal of the petition.
The reply was settled by Solicitor General Tushar Mehta.
Earlier today SG Mehta had told a Division Bench of Justices Rajiv Sahai Endlaw and Amit Bansal that the Centre's reply would be common for all petitions concerning recognition of same-sex marriages.
The other petitions seek recognition of same-sex marriage under Special Marriage Act and the Foreign Marriage Act.
Reply was drafted by Advocate Kanu Agrawal and filed through Advocate Suparna Srivastava.
The matter would be heard next on April 20.