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In a matter seeking recognition to same sex marriage listed before the Delhi High Court, the Union categorically differed, placing reliance on statutory provisions under personal laws, Penal Code, 1860 and precedents determining matrimonial obligations. The counter affidavit put forth by the Union vehemently opposed stating, “It is a competent legislature alone which, based upon cultural ethos, social standards and such other factors leading to an acceptable human behaviour regulates, permits or prohibits the shuman relations. It is only in such competent legislature that the legislative wisdom to enact a law which would govern human relationships in the context of the societal values and national acceptability vests.”  

Grounds preferred by the Union opposing the plea legitimizing same sex marriage

1. Despite decriminalization of Section 377 IPC, petitioners cannot claim a Fundamental Right for same-sex marriage. Referring to the judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, the respondents averred that, “… the only limited declaration made by this Hon’ble Court is to decriminalize a particular human behaviour which was a penal offence under Section 377 IPC. The said judgment was neither intended to, nor did in fact legitimise the human conduct in question.”
2. Marriage is a socially recognized union of two individuals governed either by uncodified personal laws or codified statutory laws; “The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws.”
3. Article 21 of the Constitution is subject to the ‘Procedure established by law’, meaning thereby, in the absence of any law permitting same sex marriage, plea of Article 21 Right to Life and personal liberty cannot sustain.
4. The aforementioned judgment protects private right of two individuals akin to Right to Privacy and cannot include public right in the nature of legitimizing same sex marriage.
5. Marriage under Indian law is not just a matter of union but solemn institution between a biological man and biological woman, to ensure that all statutory provisions governing relationship and other incidental matters are made applicable.
6. Entering into a marriage also means entering into a relationship of public significance; “… celebration of a marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible.”
7. Parties entering into marriage create an institution having its own public significance; “Living together as partners and having sexual relationship by same sex individuals 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.”
8. 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. If it is to be registered under Special Marriage Act; restitution of conjugal rights, judicial separation, divorce, conditions of divorce, alimony and maintenance, expenses of marriage proceedings, disposal of property, adoption, guardianship etc.
9. To interfere with the marriage laws, would mean disturbing the delicate balance of personal laws in the country; “Any other interpretation except treating husband as biological man and wife as a biological woman will make all statutory provisions unworkable.”
10. Marriage, in major parts of the country, more than a social obligation, is a sacrament deriving essence from ancient period.

Case Title: Abhijit Iyer v. Union of India | WP (C) NO. 6371 of 2020