Indian Gov Opposes Same-Sex Marriage in Court

As it sought dismissal of the petitions to recognize same-sex marriages within existing laws, the Centre told the Delhi High Court (HC) that marriage in India depends on “age-old customs, rituals, practices, cultural ethos and societal values.” In the Indian Penal Code (IPC), Section 377 that covers homosexuality, the Supreme Court only decriminalized “a particular human behavior,” but it did not legitimize the human conduct in question. 

Justices Amit Bansal and Rajiv Sahai Endlaw heard the petitions seeking recognition of gay marriages under the Special Marriage Act, Hindu Marriage Act, and the Foreign Marriage Act. On February 25th, the Union government filed its reply affidavit as a blanket reply for all petitioners.

According to the government, the affidavit was a reply to a petition by gay couples seeking enforcement of a fundamental right to matrimony. "Despite the decriminalization of Section 377 of the IPC, the petitioners cannot claim a fundamental right for same-sex marriage being recognized under the laws of the country," stated in the affidavit. 

Under Article 21, the fundamental right cannot be expanded to include the fundamental right for gay marriage.

 As noted by the Ministry of Law and Justice, the government advises there is a “legitimate State Interest” in hindering the recognition of gay marriage. The legislature must consider “societal morality” as relevant to the validity of a law. The legislature must enforce such societal morality and public acceptance based on Indian customs. 

The government says that Indian marriage is not only a contract between two individuals but “a solemn institution” between "a biological man and a biological woman.”



The Centre advised, “The fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to… include the fundamental right for same-sex marriage to be recognized under the laws… which in fact mandate the contrary.” 

Same-sex couples living together in a relationship is “not comparable” with the “Indian family unit concept” of a husband, wife, and children, noted by the government, arguing that the institution of marriage is sacred. “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… societal values.”

Additionally, the government argues that while marriage happens between two private individuals, it “cannot be relegated” to a mere concept within a person’s own private life. On the other hand, the Centre told the Delhi HC, marriage is recognized as a public relationship, where several legal rights and obligations have been adhered to. 

The Centre advised the court that, while it can analyze existing rights, it cannot create a new right. The law does not permit the court to circumvent the laws intended for heterosexual couples. Same-sex marriage is “neither recognized nor accepted in any uncodified personal law or any codified statutory law.” 

“Any interference with the existing marriage laws would cause complete havoc with the delicate balance of personal laws in the country,” concluded the government, adding that it could lead to further deviations of marriage laws, including those applying to individuals of the Christian or Muslim faith.

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