It was indeed a sad state of affairs, when on Thursday, 25 February, citing the concept of Indian values and family system, the central government opposed pleas that sought the lawful recognition of same-sex marriages in the Delhi High Court.
The Government in an affidavit stated, “Living together as partners and having a sexual relationship with the same-sex individual is not comparable with Indian family unit concept of a husband, wife, and children, which necessarily presuppose a biological man as 'husband', a biological woman as 'wife' and children born out of union.”
“Family issues are far beyond mere recognition and registration of marriage between people of the same gender”, the affidavit further added.
The center also stated that courts do not hold the power to give legal recognition for the same when the statute does not permit it. However, the Delhi government said that it is the court that will decide the way forward.
Why does the Central government oppose same-sex marriages?
The central government began its affidavit by stating that same-sex marriage can’t be claimed as a fundamental right under the Indian Constitution. To further explain its argument, a paragraph from the Supreme court’s Navtej Johar judgment has been cited, which states, “Supreme Court of India there can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage though marriage is a union.”
Thus, when it comes to marriage, divorce, or adoption, the government argues that “either the personal laws or codified law occupies the fees”. Further, it claims that Article 21 of the Indian constitution is a provision that is subject to the procedure established by law, hence same-sex marriages cannot be guaranteed under it.
The government went on to argue that the legislation of same-sex marriages falls under its domain as the parliament is responsible to enact laws “governing human relations” in the context of “societal values” and “national acceptability”.
If the court allows same-sex couples to marry, the government claims that it will be a situation of “creating” rights instead of “recognizing existing rights”, and this breaches the principle of separation of powers. The Modi government further states, “The question as to whether such a relationship be permitted to be formalized by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.”
According to the government in India, a marriage is not just a union between two individuals, but a solemn institution between a “biological” man and a “biological” woman. The center went on to say that marriages are not a private but a public concept, that forms a social institution to ensure the joint responsibility on both the spouses for “proper” psychological and mental growth of their children in the most “natural way”.
Marriage between two individuals of the same gender is “neither recognized nor accepted in any uncodified personal law or any codified statutory law”, the Centre said.
“Any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country,” the government concluded. It also further added that it may lead to further complexities with laws governing marriages of people from the Christian or Muslim faith.
Who Are the Petitioners?
According to one petition, the petitioners Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani who are members of the LGBT community, argue that the conception of marriage under the Hindu Marriage Act permits same-sex marriages. The petitioners contend, “Section 5 of the Act clearly lays down that marriage can be performed between any two Hindus under the Act.” They further explain that the act nowhere states the desired specification that the marriage has to be conducted between a Hindu man, and a Hindu woman, and thus it makes it an illegal move for the authorities to refuse same-sex marriages under this act.
The second plea contends under the Special Marriage Act and the two women petitioners Kavita Arora and Ankita Khanna, who have been a live-in couple for the last eight years. However, in September 2020, the relevant court refused to sanction their marriage under the Special Marriage Act. Citing the Supreme Court’s ruling in 2018 striking down Section 377 of the Indian Penal Code, the two women contest that this refusal is a violation of Article 15 in the Indian constitution as this is discrimination in the arena of sexual orientation.
The third petition was filed by two men Vaibhav Jain and Parag Vijay Mehta, under the Foreign Marriage Act. Although married in the US in 2017, their registration under the FMA was rejected by the consulate. Hence, these two men also condemn this discrimination and violation of constitutional guidelines, mentioning the Section 377 judgment.
On hearing the pleas under these three acts, Justices Rajiv Sahai Endlaw and Amit Bansal, have questioned if the Centre’s response will be applicable to all petitions. To this, Solicitor General Tushar Mehta stated that considering this is a common issue, the center’s response will matter. Hence, way back during October and November 2020, the high court had issued a notice to the Centre on three pleas that were filed. These petitions were originally scheduled to be heard by the bench of Justices Rajiv Sahai Endlaw and Sanjeev Narula on 8 January but were adjourned as the center had not provided any response back then.
Thus, currently, the Division Bench of Justices Rajiv Sahai Endlaw and Amit Bansal have listed the cases for the next hearing on April 2020. It is highly hoped that these petitions will be duly considered in an affirmative light and the court will hopefully announce a judgment that paves way for greater acceptability of the LGBTQIA community.