Marriage In India 'Depends On Age-Old Customs': Centre Tells Delhi HC Contending No Fundamental Right Of Same-Sex Marriage

The response also emphasised that the legal recognition of marriage is essentially a question to be decided by the legislature and can not be a subject matter of judicial adjudication.

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New Delhi: The central government has told the Delhi High Court that there is no fundamental right to seek recognition for same-sex marriage even though homosexual relationships have been decriminalised.

The response was submitted in the Central Government's affidavit filed in a petition seeking recognition of same-sex marriage under the Hindu Marriage Act.

"Despite the decriminalisation of Section 377 of the IPC, the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country," the affidavit stated.

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It contended that the fundamental right under Article 21 cannot be expanded to include the fundamental right for same-sex marriage.

"A solemn institution between a biological man and a biological woman"

"In India, marriage is not just a matter of union of two individuals but a solemn institution between a biological man and a biological woman," the affidavit read.

The reply was settled by Solicitor General Tushar Mehta.

The government had further stated that living together as partners and having a sexual relationship with same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit concept of a husband, wife and children.

 

"Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having 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.

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The response also emphasised that the legal recognition of marriage is essentially a question to be decided by the legislature and can not be a subject matter of judicial adjudication. Then going on to add that any interference with the marriage laws framed by the Parliament in the country would cause complete havoc with the delicate balance of personal laws in the country.

The Centre submitted that marriage in India is regarded as a "sacrament" and "depends on age-old customs, rituals and cultural ethos and societal values".

While seeking dismissal of the petition, it contended that the marriage of same-sex persons would violate the existing personal as well as codified laws.

The matter is going to be heard next on April 20.