Opposing various pleas seeking legalization of same-sex marriage, the Central government stated, “Living together as partners and having a sexual relationship by same-sex individuals cannot be compared with an Indian family unit.”
“Living together as partners and having a sexual relationship by same-sex individuals [which is decriminalized 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,” read the affidavit filed by the Centre.
The Central government stated that 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. Registration of marriage of same-sex persons also results in the violation of existing personal as well as codified law,” the affidavit said further.
The Centre further stated that the relationship of marriage has more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. “It is submitted that entering into marriage, therefore, is to enter into a relationship that has a public significance as well the institutions of marriage and the family are important social institutions in India that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children and their mental and psychological upbringing also,” the affidavit read.
“The celebration of a marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible,”
The Centre further stated that the Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of religious sanction, and thereby claim legal and statutory sanction.
“…any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country,” said the Centre opposing the various pleas seeking legalization of same-sex marriage.
The batch of petitions includes a plea by Abhijit Iyer Mitra, saying that though the Supreme Court judgment in “Navtej Singh Johar V Union of India” had decriminalized homosexual sex, same-sex marriage is still not being allowed under the provision of the Hindu Marriage Act.
The petitioner is a Defence Analyst and also a member of the LGBT community in India and he stated that there is nothing in the Hindu Marriage Act of 1956 that mandates that marriage should take place between a Hindu man and a Hindu woman. “Section 5 of the Act clearly lays down that marriage can be performed between any two Hindus under the Act,” said the plea.
He submitted that despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same is not being registered throughout the country and also in the National Capital Territory of Delhi. As a result of this, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them.
“The non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon’ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign State is a signatory to,”
“That the case for extending the same right of marriage to lesbian, gay, bisexual and transgender (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated. It rests on two fundamental principles that underpin International Human Rights Law: ‘Equality and non-discrimination.
Further, the principle of universality admits no exception. Human rights truly are the birthright of all human beings. In addition to this, the opening words of the Universal Declaration of Human Rights are unequivocal: ‘All human beings are born free and equal in dignity and rights,” said the plea.