Same-sex marriages will wreak havoc: Govt in SC | Latest News India - Hindustan Times
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Same-sex marriages will wreak havoc: Govt in SC

By, New Delhi
Mar 13, 2023 02:14 AM IST

Legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values, the Union government told the Supreme Court in an affidavit filed on Sunday, adding that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman

Legal validation of same-sex marital unions will cause “complete havoc” with the delicate balance of personal laws in the country and in accepted societal values, the Union government told the Supreme Court in an affidavit filed on Sunday, adding that the legislative policy in India recognises marriage as a bond only between a biological man and a biological woman.

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Opposing a bunch of petitions seeking recognition for same-sex marriages, the Centre asserted that it is “impermissible” for the apex court to change the entire legislative policy of the country that is deeply embedded in religious and societal norms, which would further trigger an “irreconcilable violence” to a large number of statutes defining ‘husband’ as a biological man and ‘wife’ as a biological woman.

“The Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction, and thereby claim legal and statutory rights and consequences… This definition is socially, culturally and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation,” said the affidavit, filed through the Union law ministry.

“Any other interpretation will make all statutory provisions unworkable apart from being completely contrary to the consistent legislative policy which is based upon the considered opinions of law makers, based on cultural ethos and societal values in each country... Given the clear intent of the Parliament expressed in the Acts, the court ought not to adopt a construction that would defeat such intent nor should it expand the definition of marriage to such classes who were never meant to be covered under it. To do so would completely distort the language of the statutes,” it added.

The affidavit, settled by solicitor general Tushar Mehta, pointed out 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 in India and that any recognised deviation of this human relationship can occur only before the competent legislature.

According to the Centre, a marriage cannot be viewed as merely a concept within the domain of privacy of an individual when a formal recognition of such human relationships has many statutory and other consequences on couples, as well as their children, under various legislative enactments, covering issues such as divorce, maintenance, succession, adoption and inheritance.

Similarly, the affidavit, drawn by advocates Kanu Agrawal and Gaurang Bhushan, underscored that a marriage cannot be compared with a consensual relationship between two adults of the same sex or a live-in relationship which the Supreme Court has recognised as valid and lawful.

“Living together as partners and having sexual relationship by same sex individuals (which is decriminalised now) 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 – who are reared by the biological man as father and the biological woman as mother,” it said.

After the decision in the Navtej Singh Johar case (decriminalising same sex relationships), the Centre argued, the only change is that persons of the same sex can engage in consensual sexual intercourse without being held criminally liable under Section 377 of the Indian Penal Code.

“This, and no more than this, is what has been held in that case. While the aforesaid conduct has been decriminalised, it has by no means been legitimised...the dictum of the judgment cannot include public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct,” it said.

A bench, headed by Chief Justice of India (CJI) Dhananjaya Y Chandrachud, is currently seized of a clutch of 15 petitions demanding legal recognition for same-sex marriages. The petitioners, which included same-sex couples and right activists, have challenged the constitutionality of pertinent provisions of the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws on the ground that they deny same sex couples the right to marry. Alternatively, the petitions have requested the top court to read these provisions broadly so as to include same-sex marriage.

The bench, which also includes justices PS Narasimha and JB Pardiwala, will take up the matter on Monday.

Seeking that the petitions be dismissed, the government has maintained in its affidavit that the court should neither rewrite the legislative text and intent under various codified statutes governing marriage nor should it try to read down the existing provisions under laws dealing with marriage, since that would be in clear conflict with the Parliament’s will and the legitimate state interest in limiting the legal recognition of marriage to persons of opposite sexes only.

“Statutory recognition of marriage limited to marriage/union/relation as being heterosexual in nature, is the norm throughout history and are foundational to both the existence and continuance of the State. Hence, considering its social value, the State has a compelling interest in granting recognition to heterosexual marriage only to the exclusion of other forms of marriage/unions,” it added.

Stating that there cannot be a fundamental right to seek registration of same-sex marriage, the Centre contended that the State has created a valid classification between same-sex and heterosexual couples based on an intelligible differentia and thus, the provisions under the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act and other marriage laws cannot be challenged in the ground of breaching the rule of equality under Article 14 of the Constitution.

“This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages). There can be no fundamental right for recognition of a particular form of social relationship. While it is certainly true that all citizens have a right to association under Article 19, there is no concomitant right that such associations must necessarily be granted legal recognition by the State. Nor can the right to life and liberty under Article 21 be read to include within it any implicit approval of same sex marriage,” maintained the affidavit.

The statutory recognition of marriage as a union between a man and a woman is intrinsically linked to the recognition of heterogeneous institutions of marriage, said the Centre, adding that the acceptance of Indian society is based upon its own cultural and societal values, which are recognised by the competent legislature.

“Considerations of societal morality are relevant in considering the validity of the legislature and further, that it is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos,” it emphasised.

The affidavit added: “The question is not whether relationships in the nature of the ones pleaded by the Petitioner can be fitted in the present legal framework. Rather the question is that when the Legislative intent, with regard to limiting the legal recognition of marriage and the benefits associated with such legal recognition, are limited to heterosexual couples, it is impermissible for the Hon’ble Court to override the same.”

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