New Delhi: The Centre has opposed in the Supreme Court a batch of petitions which seek legal recognition of same-sex marriages, saying that the issue has consequences and must be left to the legislature. The Union government also said interfering with the present system that is governed by personal laws “would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values”.
The government stuck to its earlier stand that same-sex marriage is not compatible with the concept of an “Indian family unit”, which it said consists of “a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and children born of the union between the two, who are reared by the biological man as father and the biological woman as mother”.
In an affidavit filed before the apex court which is due to hear the matter on Monday, the government submitted that despite decriminalisation of Section 377 Indian Penal Code, the petitioners can’t claim a fundamental right for same-sex marriage to be recognised under the country’s laws. It said even if such a right is claimed under Article 21 of the Constitution, such right can be curtailed by the competent legislature on permissible constitutional grounds, including legitimate State interest.
The government said the registration of marriages of same sex persons also results in the 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 the personal laws governing individuals. At the same time, it submitted that though the Centre limits 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 “are not unlawful”.
The Centre said Western decisions that are without any basis in Indian constitutional law jurisprudence can’t be imported in this context, while asserting that granting recognition to human relations is a legislative function and can never be a subject of judicial adjudication. “Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such human relationships cannot be regarded as just a privacy issue between two adults,” it said.
The government said that “the notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation”.
Referring to laws dealing with marriage, the Centre said “a plain reading of the impugned laws makes plain that the legislative intent was to recognise marriage as being the union of one man and one woman only. The language employed in the provisions thereof – ‘female’, ‘woman’, ‘husband’, ‘wife’ etc -- is proof positive that the legislature in making these laws never intended that they should apply to any union other than heterosexual marriages. The terms used are specific, being capable of only one possible definition”.
The government said: “Using such gender-specific language was a conscious decision of Parliament and shows that gender-specific application of these laws is part of the legislative policy… Given the clear intent of Parliament… the court ought not to adopt a construction that would defeat such intent, nor should it expand the definition of marriage to such classes who were never meant to be covered under it. To do so would completely distort the language of the statute.”
The Centre sought to underline that “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”.
At least four gay couples in recent months asked the court to recognise same-sex marriages, setting the stage for a legal face-off with the Union government. The Centre said: “Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this court to change the entire legislative policy of the country deeply embedded in religious and societal norms.”
The Supreme Court had, on January 6, clubbed and transferred to itself all such petitions pending before different high courts, including the Delhi high court.
