'Heterosexual Marriages The Norm' : Centre Opposes Pleas In Supreme Court Seeking Recognition For Same-Sex Marriages

The notion of marriage itself necessarily presupposes a union between two persons of the opposite sex, said the Central Government in its counter-affidavit filed in the Supreme Court opposing a bunch of petitions which seek legal recognition for same-sex marriage.

The Centre said that the union between persons of opposite sex 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".

All personal laws and statutory enactments dealing with marriage recognize a union between a man and a woman only. When there is a clear legislative intent to that effect, a judicial intervention to rewrite the text of the law is impermissible. When the provisions employ a clear gender specific language by using the words "man" and "woman", Courts cannot give a different meaning through an interpretative excercise. 

Living together of persons in same-sex relationships "cannot be compared to the Indian family concept of a husband, a wife and children born out of the union", the Centre said. The fact that homosexual relationships are decriminalized after the Navtej Singh Johar judgment cannot give rise to a claim to seek legal recognition for such relationships as a marriage.

"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 – who are reared by the biological man as father and the biological woman as mother"

Heterosexual marriage is the norm

"Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State", the Centre said while arguing that there is a compelling and legitimate State interest in recognizing only heterosexual marriages.

"While other forms of unions may exist in the society which would not be unlawful, it is open for a society to give legal recognition of the form of union which a society considers to be quintessential building block for its existence", the affidavit stated.

It also said that giving legal recognition to same-sex marriages will give rise to a lot of complications in issues related to adoption, divorce, maintenance, inheritance etc. All statutory provisions relating to these matters are based on a marriage between a man and a woman and it is impossible to make these provisions workable in a same-sex marriage.

Recognition of marriage necessarily brings with it right to adopt and other ancillary rights. It is therefore necessary that such issues are left for being decided by the competent Legislature where social, psychological and other impacts on society, children etc., can be debated. This will ensure that wide ranging ramifications of recognizing such sacred relationships are debated from every angle and legitimate state interest can be considered by the Legislature.

No fundamental rights violated due to non-recognition of same-sex marraige

The Centre argued that no fundamental rights under Part III of the Constitution are breached due to the non-recognition of the same-sex marriage.

The recognition of only hetro-sexual marriages is based on a reasonable classification. "There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages)", the affidavit read. Therefore, there is no violation of the equality clause under Article 14.

Further, it is argued that not recognizing homosexual marriages cannot be construed as discrimination under Article 15(1).  "This is because no other form of cohabitation enjoys the same status as heterosexual marriage including Heterosexual live-in relationships...To fall foul of Article 15(1), there should be discrimination only on the basis of sex. It is evident that this condition precedent is not at all satisfied in the present case".

There can be no fundamental right for recognition of a particular form of social relationship.

"While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same sex marriage," the government said.

Marriage cannot be seen as a privacy issue
The Centre said that the petitioners cannot rely on the Puttaswamy judgment which recognized the fundamental right to privacy.

"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 when the question of formalizing their relationship and the legal consequences flowing therefrom is involved. Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such human relationship, cannot be regarded as just a privacy issue between two adults".

The dictum of Navtej Singh Johar judgment, does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contravention of prevailing statutory laws.

The batch of petitions challenge the provisions of the Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act to the extent they do not recognize same-sex marriages. In January, a bench led by CJI DY Chandrachud had transferred to the Supreme Court the petitions pending in High Courts on this issue.

Case Title : Supriyo @ Supriyo Chakraborthy vs Union of India WRIT PETITION (CIVIL) NO. 1011 OF 2022 and connected cases.