The Centre in the Supreme Court frowned upon same-sex marriage while invoking the “accepted view” that a marriage between a biological man and woman is a “holy union, a sacrament and a sanskar” in India.
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“The institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament, a holy union, and a sanskar. 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,” the Centre said in a 56-page affidavit filed on March 12.
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Any “deviation” from this “statutorily, religiously and socially” accepted norm in “human relationship” can only happen through the legislature and not the Supreme Court, the government said.
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The government argued that the Court had only decriminalised sexual intercourse between same-sex persons in its 2018 judgment in Navtej Singh Johar, and not legitimised this “conduct”. The court, while decriminalising homosexuality, had never accepted same-sex marriage as part of the fundamental right to life and dignity under Article 21 of the Constitution.
The government said a same-sex marriage cannot be compared to a man and women living as a family with children born out of the union.
“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…” the government contended.
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Registration of marriage of same-sex persons would also result in violation of existing personal as well as codified law provisions.
“The Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws and 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. Any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” the government said.
It said statutory recognition of hetrosexual marriage was the norm throughout history and are “foundational to both the existence and continuance of the state”.
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The government said there was a “compelling interest” for the society and the state to limit recognition to heterosexual marriages only.
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The affidavit came in response to the Court’s decision to examine petitions to allow solemnisation of same-sex marriage under the Special Marriage Act.
The Special Marriage Act of 1954 provides a civil form of marriage for couples who cannot marry under their personal law.
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Several petitions, including ones by partners Supriyo @ Supriya Chakraborty and Abhay Dang, have been filed. They argued that the non-recognition of same-sex marriage amounted to discrimination that struck at the root of the dignity and self-fulfillment of LBTQ+ couples. A separate petition was also filed by Parth Phiroze Mehrotra and Uday Raj Anand.
The Court had issued separate notices to the Union of India and the Attorney General of India. It had transferred various pending issues before various High Courts, including in Kerala and Delhi, to itself.
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Senior advocates Mukul Rohatgi, Neeraj Kishan Kaul, Menaka Guruswamy, and advocate Arundhati Katju had argued that this was a sequel to the Navtej Johar case.
The petitioners had said the 1954 Act should grant same-sex couples the same protection it allowed inter-caste and inter-faith couples who want to marry.