Can’t approve or register same sex marriages in India, Government clarifies

Indian family unit concept of a husband, a wife and children – GOI

The Government of India (GOI) on Thursday told the Delhi High Court that petitions seeking certification of same-sex “marriages” cannot be approved and the matter has nothing to do with the fundamental rights. Seeking for dismissal of the petitions filed a set of people claiming as gay-lesbian-transgender rights activists, Government said categorically in India marriage is defined between man and woman only.

The Central Government has told the Delhi High Court that despite the decriminalisation of homosexuality under Section 377 of the Indian Penal Code, there is no fundamental right to same-sex marriage. “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. The Government further said that seeking a declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition.

The reply was settled by Solicitor General Tushar Mehta. Earlier 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 the recognition of same-sex marriages.

“Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having a 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,” said Government, rejecting the demand of same-sex marriage certification.

“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,” pointed out Central Government adding that marriage of same-sex persons would violate the existing personal as well as codified law, seeking dismissal of the petition.

The reply was settled by Solicitor General Tushar Mehta. Earlier 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 the recognition of same-sex marriages. Many petitions were on getting certified under the Hindu Marriages Act. The other petitions seek recognition of same-sex marriage under the Special Marriage Act and the Foreign Marriage Act.

Central Government also asserted that Indian families recognize a union only between a biological man and a biological woman. The next hearing, in this case, will take place on 20th April. The Centre has also reiterated that decriminalising same-sex consensual relationships was a different thing than same-sex marriage.