Recognition of a specific type of social relationship cannot be considered a fundamental right.
Gay couples seeking legal recognition of same-sex marriage have faced opposition from the Central government, who filed an affidavit before the Supreme Court on Sunday.
The government argued that the Indian family unit concept involves a biological man and woman with children born out of wedlock, and that living together and engaging in a sexual relationship as same-sex partners cannot be compared to it.
The government further stated that the Indian family unit requires a biological man as a “husband,” a biological woman as a “wife,” and children born out of their union.
According to an affidavit filed by the Central government before the Supreme Court, family issues extend beyond merely recognizing and registering same-gender marriages. The government argued that the Indian family unit concept, which involves a husband, a wife, and children born out of their union and reared by their biological parents, necessarily presupposes a biological man as the husband, a biological woman as the wife, and is not comparable to living together as partners and engaging in a sexual relationship between same-sex individuals, which has been decriminalized.
The Central government stated that while Article 19 of the Indian Constitution grants citizens the right to association, it does not guarantee legal recognition of such associations by the State. Furthermore, the right to life and liberty under Article 21 cannot be interpreted as implicit approval of same-sex marriage. The government’s affidavit was in response to several petitions seeking the extension of the right to marry a person of one’s choice to LGBTQIA+ citizens. A bench consisting of Chief Justice of India DY Chandrachud and Justices PS Narasimha and JB Pardiwala had earlier transferred all petitions seeking recognition of same-sex marriage from various High Courts to itself.
The Central government argued in its affidavit that the registration of same-sex marriages would violate existing personal and codified laws, including those related to prohibited relationships, marriage conditions, and ceremonial and ritual requirements under personal laws that govern individuals. The government maintained that the legislative intent was limited to the recognition of a legal relationship of marriage between a man and a woman as husband and wife, and that the petitioners’ requests in PIL/Writ jurisdiction seek to alter the legislative text and intent under various codified statutes related to marriage and related issues.
The Central government pointed out the provisions of the Domestic Violence Act to support its argument that it is not possible to implement existing statutory provisions, such as those related to degrees of prohibited relationships, ceremonial and ritual requirements, and conditions of marriage, in the context of same-sex marriage. The government contended that the legislative intent was limited to legal recognition of marriage and associated benefits for heterosexual couples, and that it is not permissible for the Court to override this intent. The government also clarified that while same-sex relationships are not illegal, the State only recognizes heterosexual relationships for the purpose of marriage. The affidavit stated that the State does not recognize other forms of marriages, unions, or personal relationships between individuals in society, but they are not unlawful.
Supriyo Chakraborty and Abhay Dang, who have been in a committed relationship for almost a decade, filed a petition seeking recognition of same-sex marriage. The couple, who contracted COVID-19 during the second wave of the pandemic, held a wedding-cum-commitment ceremony to mark their ninth anniversary, but their relationship is not legally recognized.
The petition cited the Puttaswamy case, in which the Supreme Court affirmed that LGBTQIA+ persons enjoy the same rights to equality, dignity, and privacy as all other citizens under the Constitution.
Another petition filed by Parth Phiroze Mehrotra and Uday Raj, a gay couple, argued that non-recognition of same-sex marriages violates the right to equality under Article 14 and the right to life under Article 21 of the Constitution.
Source: https://www.barandbench.com/news/litigation/central-government-opposes-same-sex-marriage-plea-supreme-court
