Centre opposes pleas to recognise same-sex marriage under special marriage act

The Centre, in its affidavit submitted to the Delhi High Court, has opposed pleas to recognise same-sex marriages under Special Marriages Act.

UPDATED: February 26, 2021 09:02 IST

The Centre has opposed pleas to recognise same-sex marriage under the special marriage act. In its affidavit filed in the Delhi High Court in pleas seeking to recognise same-sex marriage, Centre said that there is a “larger legislative framework” that recognises marriage only as between a man and a woman.

“Personal laws recognise only heteronormative marriages. Interference in this would cause havoc,” it said.

‘Marriage a socially recognised institution’

The Centre further states that marriage is not only a private concept but a socially recognised institution with its own public significance.

“Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim a fundamental right for same-sex marriage,” said the Centre’s affidavit.

Centre further said that the decriminalisation of 377, “applies to aspects which would be covered within the personal private domain of individuals [akin to the right to privacy] and cannot include the public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct”.

Plea in Delhi HC for recognition to same-sex marriage

The Centre’s reply comes after four more people belonging to the gay and lesbian community urged the Delhi High Court on Thursday to declare that marriages between any two persons irrespective of their sex be solemnised under the Special Marriage Act (SMA).

The latest petition is in addition to three pleas already before the high court seeking recognition of same sex marriages under the SMA, Hindu Marriage Act (HMA)and Foreign Marriage Act (FMA), reported PTI.

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In their plea, filed through advocates Meghna Mishra and Tahira from Karanjawala and Co law firm, the petitioners have also sought that the provisions in the SMA which require a ‘male’ and a ‘female’ for solemnisation of a marriage be declared as unconstitutional unless they are read as “neutral to gender identity and sexual orientation”.

The Delhi government in response to a similar petition filed earlier has said that there is no provision in the SMA under which two women can be married, and it would be willing to abide by the court’s direction, reported PTI.

A bench of Justices Rajiv Sahai Endlaw and Amit Bansal sought response of the Centre on the joint plea by three men and a woman, who have urged the court to also declare that the SMA applies, regardless of sex, to any two persons who wish to marry by reading down any gender or sexuality-based restrictions contained in the Act.

Centre’s reply to Delhi HC

In its reply, Centre further states, “By and large the institution of marriage has a sanctity attached to it and in major parts of the country, it is regarded as a sacrament. 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.”

Centre also said that ‘marriage between a biological man and a biological woman is solemnized, inter alia (among other things) to give the relationship a formal character’.

Centre argues why it opposes same-sex marriage

“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. 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,” it added.

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“Institutions of marriage and the family are important social institutions in India that provide for the security, support and companionship of members of our society and bear an important role in the rearing of children and their mental and psychological upbringing also. It is submitted that the celebration of a marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible,” the Centre submitted in its affidavit.

“It is submitted that marriage between a biological man and a biological woman takes place either under the personal laws or codified laws namely,the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936 or the Special Marriage Act, 1954 or the Foreign Marriage Act, 1969.

Centre opposed the plea seeking recognisation to same-sex marriage saying, “The parties entering into marriage creates an institution having its own public significance as it is a social institution from which several rights and liabilities flow. Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender.”


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