The Central government on Thursday told the Delhi High Court that there was no fundamental right of same-sex marriage in India. In an affidavit, the government said that marriage was a "sacrament" and there was a "legitimate state interest" in restricting it to recognising marriages of persons of opposite sex.
The Centre sought the dismissal of the petitions seeking legalisation of gay marriages and added that the prayers made by the petitioners seeking recognition of same-sex marriages was "wholly unsustainable, untenable and misplaced." The government said that living together and having a sexual relationship was not comparable to the "Indian family unit" concept of husband, wife and children.
The affidavit said that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners could not claim a fundamental right for same-sex marriage.
"Fundamental Right under Article 21 is subject to procedure established by law and the same cannot be expanded to include the fundamental right for a same-sex marriage to be recognized under the laws of the country which in fact mandate the contrary," the affidavit filed by the government before the court said.
The government argued that marriage was regarded as a sacrament and governed by personal laws and statutory laws and a marriage between same-sex persons would violate these laws.
"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," the affidavit said.
"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..," the affidavit went on to claim.
The Centre said that the 2018 Supreme Court judgement that decriminalised same-sex relationships in the country, did not actually legalise such relationships. According to the government, the Supreme Court judgment had only decriminalised "a particular human behaviour", but, "the said declaration was neither intended to, nor did in fact, legitimise the conduct in question."
"The dictum of Navtej Singh Johar, 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 government said that in India under the various personal as well as other laws marriage was between a man and a woman. "The legislative understanding of marriage in Indian statutory and personal law (as well as penal law) regime is very specific viz. marriage (is) between a biological man and a biologiocal woman... It is submitted that the Hindu Marriage Act and other family laws and penal laws at numerous places provide clear indications towards the same through specific references to opposite sexes referred to as "husband" and "wife"; "male and female"; "bride" and "bridegroom"; "father" and "mother"; "minor son" and "minor daughter"; "him" and "her"; ... It is submitted that all these indicate that in India, marriage is a bond between a biological man and a biological woman".
The Centre sought to draw a difference between a sexual relationship between two people living together and the family unit.
"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 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," the affidavit stated.
The Centre also questioned the jurisdiction of the court to decide the issue, saying it was the domain of the legislature.
The high court division bench of Justice Rajiv Sahai Endlaw and Justice Sanjeev Narula, have given the petitioners time till April 20 to file their responses to the government's affidavit.
The court is hearing three petitions on the issue. One is by Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi, and contends that the Hindu Marriage Act speaks about the marriage of two Hindus and therefore prohibition of same-sex marriage from the law is arbitrary; and that right to marry whoever one wants is a right guaranteed by the Constitution of India.
Another petition filed by Dr Kavita Arora and her partner, Ankita Khanna concerns the Special Marriage Act. The third petition filed by Vaibhav Jain and his partner, Parag Vijay Mehta seeks the court ruling in the Foreign Marriage Act. The couple got married in 2017 in the USA. Non-recognition of their marriage by the laws in India continues to disqualify them to travel as a married couple to India and spend time with their families, the petition said.
Last year, Solicitor General of India Tushar Mehta had said that same-sex marriage is not in our "culture. Marriage is a “sacrament”.