The Union government through a counter affidavit filed before the Supreme Court of India has opposed pleas seeking marriage equality for LGBTQIA+ persons. In its response, the Union government has stated that the pleas for allowing marriages between people of the same gender, and for allowing marriages of transgender persons, are wholly “unsustainable, untenable and misplaced”. The apex court is slated to start hearing a batch of petitions demanding marriage equality on Monday, March 13. In January, the SC had clubbed and transferred to itself all petitions pending before different High Courts on the issue of grant of legal recognition to same-sex marriages. A bench of Chief Justice DY Chandrachud and Justices PS Narasimha and JB Pardiwala had asked the Union government to file its joint reply to all the petitions by February 15.
In its reply, the Union government has responded to 15 petitions challenging the Special Marriage Act, the Foreign Marriage Act, the Hindu Marriage Act, and the Citizenship Act. Stating that the notion of marriage itself entails the ‘union between two persons of the opposite sex’, the Union government said that this definition which is "socially, culturally and legally ingrained into the very idea and concept of marriage should not be disturbed or diluted by judicial interpretation." It drew attention towards the Navtej Singh Johar vs Union of India case which decriminalised Section 377, in which the SC had made the following observation: “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union.” The Union government argued that the petitioners cannot claim a fundamental right for marriage equality to be recognised in the country.
Further stating that marriage was a ‘socially recognised union’ of two individuals that is governed by uncodified personal laws or codified statutory laws, the Union government said that the acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws. It also said that granting recognition and conferring rights recognising human relations that have consequences in law and privileges, was a legislative function and can never be the subject matter of judicial settlement.
The affidavit stated that a marriage might be between two private individuals and it cannot be confined within the domain of privacy of an individual when the question of formalising their relationship and its legal consequences are involved. The Union government also said that seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition.
The Union government also claimed that living together as partners and “having sexual relationships by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept”. The Parliament has designed and framed the marriage laws in the country that recognises the marriage of only a ‘man’ and a ‘woman’, and any interference with the same “would cause a complete havoc with the delicate balance of personal laws in the country and in accepted societal values,” the response said.
Claiming that it was not possible to term one as “husband” and the other as “wife” in a same sex marriage, the Centre has stated that many laws which use the term “husband” and “wife” as being a biological man and a biological woman respectively, would become irrelevant. “There are numerous other laws in the country, like Section 498A of the IPC, which provide special rights to wives/women who are part of such legally recognised relationship of marriage. It is submitted that any recognition over and above the conventional relationship of marriage between a man and woman, would cause irreconcilable violence to the language of the statute,” the response said. It also listed several sections of the Indian Penal Code (IPC), the Code of Criminal Procedure (CrPC), Domestic Violence Act, and the Indian Evidence Act, that dealt with marriages, dowry, etc to support the arguments.
The Union government also contended that if the pleas are recognised, it may lead to further anomalies in other laws governing marriages of persons belonging to Christian religion or Muslim religion. Citing certain sections of the Special Marriage Act, the Muslim Personal Law (Shariat) Application Act and the Muslim Women (Protection of Rights on Divorce) Act, the government has argued that the language using specific words “female”, “woman”, “husband”, “wife” etc was proof that the legislature never intended that they should apply to any union other than heterosexual marriages.
“Using such gender specific language was a conscious decision of Parliament and shows that gender specific application of these laws is part of the legislative policy,” the Union government said adding that the court should not expand the definition of marriage classes ‘who were never meant to be covered under it’, and that doing so would completely “distort the language of the statute”.
The affidavit also said that while the government does not recognise “other forms of marriages or unions or personal understandings” of relationships between individuals in a society, it was not unlawful. They also argued that the laws do not violate the fundamental rights of same-sex couples. It also said that the Supreme Court has only decriminalised section 377 of the Indian Penal Code, but it has “by no means been legitimised”.