NEW DELHI: The Union government has opposed before the Supreme Court a plea for recognising the marriage of same sex couple, contending it is not in conformity with societal morality, Indian ethos and codified personal laws.
The same sex marriage would not only violate the codified law but it would also cause a complete havoc with the delicate balance of personal laws in the country and the accepted societal values, it added.
"Living together as partners and having sexual relationship by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit a husband, a wife, and children born out of the union who are reared by the biological man as father and the biological woman as mother," the Union government said in an affidavit.
The Centre clarified its stand in response to the Supreme Court's notice issued on a batch of petitions by Supriyo alias Supriya Chakraborthy and others seeking a direction to allow registration of marriage of same sex couples.
"The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. 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," it said.
The government said 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. While there may be various other forms of marriages or unions or personal understandings of relationships between individuals in a society, the State limits the recognition to the heterosexual form. The State does not recognise these other forms of marriages or unions or personal understandings of relationships between individuals in a society but the same are not unlawful," it said.
In a same sex marriage, it is neither possible nor feasible to term one as “husband” and the other as “wife” in the context of legislative scheme of various Statutes, it pointed out.
Resultantly, the statutory scheme of many enactments will become otiose, it added.
Besides the personal laws, there are numerous other laws in the country, like Section 498A of the IPC, which provide special rights to wives/woman who are part of legally recognised relationship of marriage. "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," it added.
The government also said it is impossible to make various statutory provisions workable in a same-sex marriage.
"Registration of marriage of same sex persons also results in violation of existing personal as well as codified law provisions -such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals," it said.
If marriage is to be solemnised and registered under any personal law; ‘requirements for registration’, if marriage is to be registered under the Special Marriage Act; ‘restitution of conjugal rights’; ‘judicial separation’, ‘divorce’; ‘conditions of divorce’; ‘alimony and maintenance pendente lite’, ‘permanent alimony and maintenance’; ‘expenses of marriage proceedings’; ‘disposal of property’, ‘adoption’, ‘guardianship’,etc will be affected, which is the exclusive domain of the Legislature, it added.
The government said depending upon the personal laws, the nature of marriage as an institution is different. Amongst Hindus, it is a sacrament, a holy union for performance of reciprocal duties between a man and a woman. In Muslims, it is a contract but again it is envisaged only between a biological man and a biological woman.
"It will, therefore, not be permissible to pray for a writ of this court to change the entire legislative policy of the country deeply embedded in religious and societal norms," the government asserted.
The petitioners cannot claim a fundamental right for same-sex marriage to be recognised under the laws of the country, despite the decriminalization of Section 377 of the Indian Penal Code.
""Marriage” is essentially a socially recognised union of two individuals which is governed either by uncodified personal laws or codified statutory laws. The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws. It must be kept in mind that granting recognition and conferring rights recognising human relations which has its consequences in law, and privileges, is in essence a legislative function and can never be the subject matter of judicial adjudication. The prayer made by the petitioners, is, therefore, wholly unsustainable, untenable and misplaced," it further said.
"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, a holy union and a sanskar. 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," it added.
Marriage between a biological man and a biological woman is solemnised, inter alia to give the relationship a formal character and to ensure that all statutory provisions governing the relationship and all other incidental matters (rights, liabilities, privileges and consequences) are thereby made applicable.
The Centre pointed out 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.
"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," it said.