The Centre on Thursday opposed any changes to the existing laws on marriage to recognise same sex marriages, saying such interference would cause “a complete havoc with the delicate balance of personal laws in the country”.
“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 Centre argued in the Delhi High Court.
It said the 2018 landmark judgment of the Supreme Court decriminalising consensual homosexual sex in India was “neither intended to, nor did it in fact, legitimize the human conduct in question”.
In an affidavit filed in response to petitions seeking to recognize same sex marriage, the Central government said, “Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.
The Centre submitted that “registration of marriage of same sex persons also results in violation of existing personal as well as codified law provisions — such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under the personal laws governing the individuals”.
“Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable,” the government cautioned. adding, “In a same sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of legislative scheme of various statutes”.
The Centre also said the “question as to whether such a relationship be permitted to be formalised 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”.
The High Court was hearing three separate petitions by same-sex couples seeking to declare that the Special Marriage Act (SMA) and Foreign Marriage Act (FMA) ought to apply to all couples regardless of their gender identity and sexual orientation.
A fourth petition on the subject, which came up for hearing before a bench of Justice Rajiv Sahai Endlaw and Justice Amit Bansal on Thursday, was filed by four individuals who too claimed that the denial of same sex marriage was a denial of rights guaranteed under the Constitution.
The High Court has listed the petitions for hearing on April 20.
