Decriminalisation of Section 377 of the Indian Penal Code (IPC) does not automatically translate into a fundamental right for same sex couples to marry, the Centre’s counsel told the Delhi High Court in an affidavit on Thursday, February 25.
“Petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”
The Centre on Thursday opposed any changes to the existing laws on marriage to recognise same sex marriages, saying such interference would cause “a complete havoc with the delicate balance of personal laws in the country”.
“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, ” the Centre argued in the Delhi High Court.
It said the 2018 landmark judgment of the Supreme Court decriminalising consensual homosexual sex in India was “neither intended to, nor did it in fact , legitimize the human conduct in question”.
In an affidavit filed in reply to petitions seeking to recognize same sex marriage, the Central government said, “Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country”.
The Centre submitted that “registration of marriage of same sex people 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 the personal laws governing the individuals”.
“Any other interpretation except treating ‘husband’ as a biological man and ‘wife’ as a biological woman will make all statutory provisions unworkable, ” the government cautioned. adding, “In a same sex marriage, it is neither possible nor feasible to term one as ‘husband’ and the other as ‘wife’ in the context of legislative scheme of various statutes”.
The Centre also said 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 High Court was hearing three separate petitions by same-sex couples seeking to declare that the Special Marriage Act (SMA) and Foreign Marriage Act (FMA) need to apply to all lovers no matter their gender identification and sex orientation.
The fourth request about them, which came upward for listening to before a bench of Justice Rajiv Sahai Endlaw and Proper rights Amit Bansal on Thurs, was submitted by four folks who too claimed that the refusal of same sex relationship was a denial of rights assured under the Constitution.
The particular Supreme Courtroom ruling, which allowed same sex lovers the independence to guide a sensible private life, only allows them the “basic right to friendship so long as such companionship is consensual, free of the vice of deceit, force, coercion, and will not cause the infringement of basic rights of others”, it said, citing the courtroom ruling in the Navtej Singh Johar case.
The particular submission was made by Solicitor Common Tushar Mehta prior to the high court during the listening to of a PIL seeking a announcement that same-sex marriages be recognised under the Hindu Marriage Take action (HMA) and Special Relationship Act.
Quarrelling before a bench of Chief Proper rights D And Patel and Justice Prateek Jalan, Tushar Mehta contended that “our laws, our legal system, our community and our values do not recognize a relationship, which is a sacrament, between same-sex couples”.
Mehta said the request to give recognition to or enable registration of such relationships was “not permissible” for two reasons — first of all, the request was requesting the courtroom to legislate and second of all, any alleviation granted “would run unlike various lawful provisions”.
Benefit Court has listed the petitions for hearing on April 20.