New Delhi: The Centre on Thursday opposed a batch of petitions seeking recognition and registration of marriages between same-sex couples and told the Delhi high court that there is a “legitimate state interest” in limiting recognition of marriages to opposite-sex couples.
Responding to petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, Special Marriage Act and the Foreign Marriage Act, the Centre in an affidavit said marriage between individuals cannot be treated as a private affair, as they invoke “age-old customs, rituals, practices, cultural ethos and societal values” of India.
The Centre said recognition of same-sex marriages is not in consonance with the “Indian family concept” of husband, wife and children, and essentially goes against a “solemn institution” between “a biological man and a biological woman”.
It also stated that marriage between two individuals of the same sex is neither recognised “nor is it codified under any statutory laws or uncodified personal laws.”
Referring to the Supreme Court verdict in Navtej Singh Johar vs Union of India case, which struck down Section 377 of the Indian Penal Code, the Centre argued that it was “only a limited declaration to decriminalise a particular human behaviour, which was a penal offence under Sec 377 IPC”.
It further stated that neither the Puttuswamy judgment (one of India’s most noted privacy cases) nor the Navtej Singh Johar case referred to above allow for the recognition of marriage between individuals of the same gender.
The affidavit further stated that the question of whether or not to legalise same-sex marriages is not under the purview of courts, and courts cannot create a new right through the “process of judicial adjudication”. It added that it is for the legislature to decide on the question, and hence the petitioners’ pleas are totally “unsustainable, untenable and misplaced”.
Stating that “Western ideas without any basis in the Indian constitution” cannot be imported into the Indian context, the affidavit argued, “While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations.”
“Statutory recognition of marriage as a union between a ‘man’ and a ‘woman’ is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based on its cultural and societal values,” the Centre added.
Make marriage laws inclusive: Petitioners
The petitioners demanded that the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969, which provides for marriages of citizens of India outside India, be interpreted to include marriages of same-sex couples as well.
One of the petitions was filed by two Delhi-based mental health professionals, Dr Kavita Arora and Ankita Khanna on October 5, 2020. When the couple approached a marriage officer of Kalkaji in southeast Delhi to get married last year, the officer had refused to solemnise their marriage under the Special Marriage Act, because they are a same-sex couple.
Their petition demanded the registration of their marriage as well as a declaration that the Special Marriage Act is unconstitutional as long as it does not provide for the solemnisation of marriage of a same-sex couple.
Another petition was filed by United States-based Vaibhav Jain and Parag Mehta, demanding registration of their marriage under the Foreign Marriage Act. Jain is an Indian citizen, while Mehta is an overseas citizen of India.
Jain and Mehta were married in Washington in a court ceremony.
After their court registration, they had a traditional Jain wedding in March 2019 and a reception in Delhi in November 2019. Following this, they approached the Indian Consulate in New York in March 2020 for the registration of their marriage under the Foreign Marriage Act. But they were refused registration.
Jain and Mehta, in their petition, said that the Foreign Marriage Act should be read to recognise marriages between consenting adults regardless of the gender and sexual orientation of the parties.