Same-sex couples who live together and have a sexual relationship is not comparable with the Indian family unit concept of a husband, a wife and children born out of the union between the two, the Centre told the Delhi High Court today. Even as the Centre strongly objected to the plea, in a separate reply, the Delhi government has left the decision to the wisdom of the high court.
The Centre's reply came on a batch of pleas that sought recognition of same-sex couples under the provisions of the Hindu Marriage Act, 1955, Special Marriage Act, 1954 and the Foreign Marriage Act, 1969. The high court on October 14 had issued notice on the same.
The Centre further told the high court that only the legislature can permit, formalise or otherwise recognise marriage between same-sex persons. The same is outside the purview of judicial adjudication.
"Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage bet persons belonging to the same gender," the centre's reply read.
Also read: Same-Sex Couple To HC: Without Marriage, Strangers Before Law
Marriage is a public concept; cannot be relegated to the domain of privacy
The Centre argued that while marriage may be between two private individuals having a profound impact on their private lives, it cannot be relegated to merely a concept within the domain of privacy of an individual. Marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations are attached.
The Centre submitted that the Supreme Court's 2018 Navtej Singh Johar verdict decriminalising gay sex covered aspects of human behaviour that was within the personal private domain of individuals [akin to right to privacy], but the same cannot include a public right in the nature of recognition of same-sex marriage and thereby legitimizing that particular human conduct.
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," it further argued.
Celebration of marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their jt 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 said while making its point.
Registration of same-sex marriage a violation of personal laws: Centre to HC
Registration of same-sex marriages violates existing personal as well as codified law provisions. After reading the provisions of personal laws of our country, it is clear that the Legislature's "intent" was limited to recognising the legal marriage between a man and a woman. The Centre added that the petitioners clearly "seek to re-write the legislative text and intent under various codified statutes governing marriage and other issues ancillary thereto".
"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," it added. "Any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country," the reply further read.
"…considering larger statutory framework, it is clear that there exists a legitimate state interest in limiting the legal recognition of marriage to persons of opposite sexes only," the Centre said.
Laws outside judicial purview: Centre to HC
Constitutional courts can analyse existing rights but cannot create a new right by the process of judicial adjudication. The pleas before the court are thus "wholly unsustainable, untenable and misplaced." Considerations of societal morality are relevant in considering the validity of the legislature and further, that it is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos," it added.
Laws are gender-neutral: Delhi HC
While hearing the plea, the high court had observed that "laws are gender-neutral". Justices Rajiv Sahai Endlaw and Anu Menon had advised the Centre not to treat this issue as an adversarial litigation and try interpreting the laws for citizens of the country.
"Make life of every citizen smooth," Justice Anu Menon had requested of the Centre. The Centre, then represented by advocate Kirtiman Singh, had agreed. During arguments, the bench had also observed that marriage laws were not defined in India and remained customary. "Because there was no inter-faith marriage, we came up with a special statute. If any corrective measures are to be taken, it should be taken at this stage...," Justice Endlaw had pointed out.
Also Read: Orissa High Court Reiterates Gay Couples' Right To Live Together
