No fundamental right to same-sex marriage, Centre tells Delhi HC

The Centre has informed the Delhi High Court that there is no fundamental right to same-sex marriage.

The Delhi High Court was hearing on Thursday a plea from four people belonging to the gay and lesbian community seeking to declare that marriages between any two persons irrespective of their sex be solemnised under the Special Marriage Act (SMA). The latest petition is in addition to three pleas already before the High Court seeking recognition of same-sex marriages under the SMA, Hindu Marriage Act (HMA) and Foreign Marriage Act (FMA).

A bench of Justices Rajiv Sahai Endlaw and Amit Bansal sought response of the Centre on the joint plea by three men and a woman, who have urged the court to also declare that the SMA applies, regardless of sex, to any two persons who wish to marry by reading down any gender or sexuality-based restrictions contained in the Act.

In their plea, filed through advocates Meghna Mishra and Tahira from Karanjawala and Co law firm, the petitioners have also sought that the provisions in the SMA, which require a 'male' and a 'female' for solemnisation of a marriage, be declared as unconstitutional unless they are read as "neutral to gender identity and sexual orientation".

The Centre filed an affidavit in the plea related to recognition of same-sex marriages under the Hindu Marriage Act.

Bar and Bench reported the Centre's affidavit to the High Court as stating, "Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country." The Centre informed that contrary to popular opinion in the case of Navtej Singh Johar vs Union of India, the Supreme Court had not legalised homosexuality. The affidavit stated the court had only made a limited declaration to decriminalise a particular human behaviour, which was a penal offence under Section 377 of the IPC.

Bar and Bench quoted the affidavit as stating, "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."

Referring to the traditional views of marriage in India, the affidavit stated, "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."