Same-Sex Marriage is not a Fundamental Right: Delhi HC

Same-Sex Marriage is not a Fundamental Right :Delhi HC

The submission was made in an affidavit submitted in a petition by the Central Government requesting approval of same-sex marriage under the Hindu Marriage Act. 

The Central Government has advised the Delhi High Court that there is no legal right to same-sex marriage, notwithstanding the decriminalization of homosexuality under Section 377 of the Indian Penal Code. (Abhijit Iyer Mitra vs UOI & ors).

The submission was made in an affidavit submitted in a petition by the Central Government requesting approval of same-sex marriage under the Hindu Marriage Act.

“Given the decriminalization of Section 377 of the Indian Penal Code [hereinafter referred to as “IPC”], the petitioners cannot, according to the affidavit, say that the constitutional right to same-sex marriage is accepted by the laws of the nation.” 

It also claimed that it had more consequences than mere legal approval to obtain a decree for solemnization or registry of marriage.

“Family conflicts are far beyond the simple acceptance and registration of marriage for people of the same sex. It is not equivalent to the Indian family unit definition of a spouse, a wife and children, which obviously presupposes a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born from the marriage between the two, to live together as spouses and have sexual relationships between same-sex individuals [which is now decriminalized] “

Centre said that personal partnerships such as marriages are regulated, approved, or forbidden only by a statute made by the competent legislature.

“Marriage” is simply a union of two persons that is socially accepted and regulated either by uncodified personal rules or codified statutory laws. In any uncodified personal law or any codified formal law, the recognition of the union of marriage between two people of the same sex is neither recognized nor accepted,” it said. 

Therefore, it has been argued that formal approval of marriage is primarily a matter to be determined by the government and should never be the focus of judicial adjudication.

“Navtej Singh Joharsupra’s dictum would not expand the right to privacy to include, in contravention of the existing procedural rules, a constitutional right in the context of the right to marry two persons of the same sex,” the affidavit stated. 

The Centre has specifically indicated that marriage is considered a sacrament in India and relies on old traditions, rituals, moral ethos, and social values.

“The practice of marriage has a sacrament added to it, and it is treated as a sacrament in most parts of the world. In our world, marriage inevitably relies on age-old traditions, rituals, activities, cultural ethos, and social norms, notwithstanding the constitutional approval of the relationship between a biological man and a biological woman.”

The Centre argued that the marriage between same-sex couples would breach the present personal as well as codified legislation, demanding dismissal of the petition. The response was settled by General Solicitor Tushar Mehta.

SG Mehta told the Division Bench of Justices Rajiv Sahai End law and Amit Bansal earlier today that the response of the Centre will be common to all petitions about the recognition of same-sex marriages. 

The other applications demand the recognition, under the Peculiar Marriage Act and the International Marriage Act, of same-sex marriage. 

Advocate Kanu Agrawal drafted a reply and filed it via Advocate Suparna Srivastava. The case will be heard next on the 20th of April.

Purnima Ojha
‘Law is not law if it violates the principles of eternal Justice’ very beautifully penned down by Lydia Maria Child and I strongly believe, if the law is not made for the goods of people then at least it should not violate the essence of the principle of law that is “JUSTICE”. Law is made to keep each section of society on an equal platform and being a member of the law fraternity, I will try to contribute to the welfare of society. I am Purnima and I graduated from zoology (Hons) and am currently pursuing a law degree from Lloyd law college, Greater Noida. My desire is to bring a fair and unjust environment to our society through my hard work and persistent efforts.