'There Is Legitimate State Interest In Limiting Recognition Of Marriage To Persons Of Opposite Sex Only', Centre Opposes Plea To Recognize Same-Sex Marriage

Opposing a petition seeking recognition to same-sex marriages under various personal laws before the Delhi High Court, the Centre today informed the court through an affidavit that, "there is a "legitimate state interest" in limiting recognition of marriage to persons of opposite sex only", and that the institution of marriage is not merely a concept relegated to the domain of privacy of an individual.

"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", the affidavit stated.

The centre has said that contrary to the popular view that homosexuality was legalized by the Supreme Court in the case of Navtej Singh Johar v. Union of India, the court had "only made a limited declaration to decriminalize a particular human behavior, which was a penal offence under S.377 IPC. The said declaration was neither intended to, nor did in fact, legitimise the conduct in question." 

Observations in 'Puttaswamy Judgment'(Privacy Case) and 'Navtej Johar' case(which struck down Sec 377 IPC) do not confer a fundamental right to seek recognition of same-sex marriages, the Centre argued.

It has also been argued by the centre that legalizing same-sex marriages was not the purview of the court, and a decision on the same has to be taken by the legislature. Towards this, the centre submits that, "The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication. The Hon'ble Constitutional court can analyze the existing rights but cannot create a new right by the process of judicial adjudication. The prayer made by the petitioner before this Hon'ble Court, is, therefore, wholly unsustainable, untenable and misplaced."

The affidavit further states that, in India the marriage is not just a matter of union of two individuals but a "solemn institution between a biological man and a biological woman" and goes on to give the definition of marriage as per the Black's Law Dictionary.

The centre has gone on to dispute the fact that the right to marriage falls within the right to privacy of an individual and stated that, "While a marriage may be between two private individuals having a profound impact on their private lives, it is submitted that marriage, as a public concept, is also nationally and internationally recognised as a public recognition of relationship with which several statutory rights and obligations are attached."

The Centre also said that  Western decisions sans any basis in Indian Constitutional Law Jurisprudence cannot be imported in the Indian context

Some highlights from the Centre's affidavit

"Fundamental Right under Article 21 is subject to procedure established by law and the same cannot be expanded to include the fundamental right for a same sex marriage to be recognized under the laws of the country which in fact mandate the contrary".

"Considerations of social morality are relevant in considering the validity of legislation and it is for the legislature to judge and enforce such social morality and public acceptance based on Indian ethos".

"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".

"Statutory recognition of marriage as a union between a 'man' and a 'woman' is intrinsically linked to the recognition of heterogeneous institution of marriage and the acceptance of the Indian society based on its cultural and societal values".