The Central government on Thursday opposing same-sex marriage told the Delhi High court that living together as partners and having a sexual relationship by a same-sex couple not comparable with the Indian family unit concept of a husband, wife and children. The Centre's response was disposed of in the form of an affidavit.
"While a 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. It is submitted that marriage, as a public concept, is also nationally and internationally recognised as public recognition of a relationship with which several statutory rights and obligations,” the Centre said in its affidavit rejecting same-sex marriage.
"Living together as partners and having a sexual relationship by a same-sex individual is not comparable with Indian family unit concept of a husband, wife & children which necessarily presuppose a biological man as 'husband', a biological woman as 'wife' and children born out of the union," the government replied.
In its reply, the Centre further states, "By and large 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."
The Centre said that registration of marriage of same-sex persons also results in the violation of existing personal as well as codified law provisions. The subject of whether same-sex marriage can be allowed to be formalised by the way of legal acceptance of marriage is primarily a question to be decided by the legislature and not a matter of judicial adjudication, the Centre pointed.
"It is submitted that the 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 is submitted that any interference with the same would cause complete havoc with the delicate balance of personal laws in the country," the Centre said.
“The government also said that in a same-sex marriage, it is neither possible nor feasible to term one as husband and the other one as a wife. "Resultantly the statutory scheme of many statutory enactments will become otiose," it said.
"Constitutional court can analyse the existing rights but can't create a new right by process of judicial adjudication. The prayer made by the petitioner seeking legal recognition of same-sex marriage, wholly unsustainable, untenable and misplaced," Centre tells Delhi HC.
The Centre's affidavit was filed in response to the high court notice on a petition seeking legal recognition of same-sex marriages.
The petition has contested that the Hindu Marriage Act does not discriminate between heterosexual and homosexual marriages if one were to go by how it is worded, noting that the Act distinctly asserts that marriage can be solemnised between “any two Hindus”. Members of the lesbian, gay, bisexual, transgender, and intersex community had registered the petition in September last year.
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Delhi HC adjourns the hearing till April 20.
Earlier, today the multiple pleas were adjourned by the Delhi High Court while hearing petitions on same-sex marriages under Hindu Marriage Act, the Special Marriage Act, and the Foreign Marriage Act to 20 April. The government has informed the Delhi HC that it has prepared its reply to petitions seeking the legal recognition of same-sex marriage.
A Division Bench headed by Justice Rajiv Sahai Endlaw shelved the matter for April 20.