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Synopsis

The Central Government on Sunday filed an affidavit before the Supreme Court opposing the demand for legal recognition of same-sex marriages in India.

Citing the ‘nature of the concept of marriage’, the affidavit stated that 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 affidavit read.

The Centre stated, “Depending upon the personal laws applicable, the nature of marriage as an institution is different. Among Hindus, it is a sacrament, a holy union for the 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 Hon’ble Court to change the entire legislative policy of the country deeply embedded in religious and societal norms”.

The government also stated that while there are different types of relationships in society, the legal recognition of marriage is for heterosexual relationships, and the state has a legitimate interest in keeping this. Existing legislation "was limited to the recognition of a legal marriage relationship between a man and a woman, represented as husband and wife," as per the affidavit. 

“This particular human relationship, in its present form, i.e. bet a biological man & a biological woman, is accepted statutorily, religiously & socially. Any recognized deviation of this human relationship can occur only before the competent legislature”, the affidavit added.

It stated that despite the decriminalization of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country. It also stated that the acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any un-codified personal laws or any codified statutory laws.

The affidavit stated that the prayer made by the petitioners is “wholly unsustainable, untenable and misplaced”, and it must be kept in mind that “granting recognition” and “conferring rights recognizing human relations” with legal consequences and privileges is essentially a legislative function that can never be the subject of judicial adjudication.

Notably, on January 6, the Supreme Court had ordered to transfer of all pleas pending before various high courts seeking recognition for same-sex marriage to itself.

A CJI Chandrachud-led bench had ordered, "Several batches of petitions are pending before the various HCs. We are of the view that they should be transferred to the Supreme Court. We accordingly direct that all these petitions shall be transferred before us."

"Any petitioner who desires to address this court through a virtual platform can do so if they suffer from a difficulty in appearing before us physically", the bench also comprising Justices Narasimha and Pardiwala further had ordered.

Furthermore, Advocate Arundhati Katju and Advocate Kanu Aggarwal had been appointed as nodal officers for the petitioners and UOI respectively to work on the compilation of submissions from both sides.

In November last year, the Supreme Court issued a notice in the plea moved by a gay couple seeking legal recognition of same-sex marriage under the Special Marriage Act, of 1954.

Senior Advocate Mukul Rohatgi appearing on behalf of the petitioner-couple had then submitted before a bench comprising CJI Chandrachud and Justice Hima Kohli that the issue was a sequel to Navtej Singh Johar's judgment.

The absence of a legal framework that allows members of the LGBTQ+ community to marry any person of their choice had been raised by the instant plea.

It was the petitioner's case that the right to marry a person of one's choice is a fundamental right guaranteed under the Constitution of India to each "person" and has been recognized explicitly by the Supreme Court as well.

Further, last year, the Delhi High Court issued notice in a plea seeking a declaration that the right to legal recognition of a same-sex marriage or queer marriage is a fundamental right under Articles 14, 15, 19, and 21 irrespective of a person’s gender, sex, or sexual orientation.

That petition was filed in pursuit of getting an Overseas Citizen of India (OCI) card to the same-sex spouse of an Indian citizen to visit India amid the restrictions imposed due to the Covid-19 pandemic.

The counsel for the petitioners had submitted that consensual sexual acts between persons of the same sex had already been decriminalized by the Supreme Court in Navtez Singh Johar's case. The counsel had further told the high court that the right to marry a person of one’s choice is an essential component of the right to autonomy, and privacy within Article 21 which has been recognized by a catena of judgments in India as well as by foreign courts.

Case Title: Supriyo@ Supriya Chakraborthy v. Union of India & Anr. (a batch of petitions)