The Centre in a filing to the Supreme Court on Sunday stuck to its earlier stand that same-sex marriage is not compatible with the concept of an “Indian family unit”, which it said consists 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 – who are reared by the biological man as father and the biological woman as mother”.
It is submitted that despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country.
In its affidavit, filed before the Supreme Court which is scheduled to hear the matter on Monday, the Centre said 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, urging the court to reject challenges to the current legal framework lodged by LGBTQ+ couples.
It further argued that registration of marriage of same sex persons also results in violation of existing personal as well as codified law provisions such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals.
“The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation,” the Centre said.
“The parties entering into marriage creates an institution having its own public significance, as it is a social institution from which several rights and liabilities flow. 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 between persons belonging to the same gender,” it added.
At least four gay couples in recent months have asked the court to recognise same-sex marriages, setting the stage for the legal face-off with Prime Minister Narendra Modi-led union government.
“Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again is envisaged only between a biological man and a biological woman. It will, therefore, not be permissible to pray for a writ of this court to change the entire legislative policy of the country deeply embedded in religious and societal norms,” the government said in its affidavit.
The top court had, on January 6, clubbed and transferred to itself all such petitions pending before different high courts, including the Delhi High Court.