The central government has opposed a petition to legalise same-sex marriage under the Hindu Marriage Act, as moved in Delhi Court. There is no fundamental right to seek recognition for same-sex marriage, Centre tells Delhi High Court.
Central Govt has opposed in the #Delhi High Court petitions on validation of the same-sex marriage, asserting Indian family concept & legislative intent recognise a union only between a biological man & a biological woman.
— Utkarsh Anand (@utkarsh_aanand) February 25, 2021
It seeks dismissal of the pleas by @Iyervval & others.
According to reports, the central government has contended that the Indian family concept and legislative intent recognises a union only between a biological man and a biological woman. Thus, it has demanded that the plea moved by Abhijeet Iyer and others be dismissed.
According to Hindustan Times journalist, the Central government has said that 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. Further, the government contended that a two people living together and having a sexual relationship cannot be considered comparable to the with the Indian family unit concept.
Saying that the family concept entails a husband, wife and children, it necessitates that the marriage be between a biological man and a biological woman, the central government asked for the petition to be dismissed.
Living together as partners & having sexual relationship by same sex individual is not comparable with Indian family unit concept of a husband, wife & children which necessarily presuppose a biological man as 'husband', a biological woman as 'wife' & children born out of union.
— Richa Banka (@RichaBanka) February 25, 2021
The Central government further said that “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”.
'Considerations of social morality are relevant in considering the validity of legislation and it is for the legislature to judge and enforce such social morality and public acceptance based on Indian ethos", Centre tells Delhi High Court.#LGBTQ #SameSexMarriage
— Live Law (@LiveLawIndia) February 25, 2021
Saying that social morality also needs to be a consideration while talking about the validity of legislation, the central government contended that it is for legislature to judge and enforce such social morality and public acceptance based on Indian ethos.
The petition by Abhijeet Iyer Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi to legalise same-sex marriage under the Hindu law
In September 2020, a petition was filed in the Delhi High Court seeking the recognition of same-sex marriages under the Hindu Marriage Act. The petition was filed by Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi and the matter was heard by Chief Justice DN Patel and Justice Prateek Jalan. The petitioners claimed that the Hindu Marriage Act permits any two Hindus to solemnise their marriage and therefore, homosexuals should also have the right to marry and have their marriages recognised.
“That it is further submitted that despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in Delhi,” the plea claims. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it stated.
The claim that Act does not mandate that marriage is between a man and a woman appears to be unfounded. Section 5(iii) clearly mentions that a marriage between two Hindus can be solemnised if the groom is 21 years old and the bride is 18 years old at the minimum. It is a clear indication that the Act recognises marriage only between a man and a woman.
“That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity,” it added. The petition also argued that denial of the Right to Marry is in violation of the Right to Equality and Right to Life as guaranteed by the Indian Constitution.
The central government had earlier opposed the petition as well
On the 14th of September, at the first hearing of the petition, Solicitor General Tushar Mehta, appearing for the central government, said that he opposed the petition. He argued that homosexual marriages are not recognised by our laws and culture. He said that the Hindu Marriage Act itself does not recognise same-sex marriages. As per law, marriage is only between a husband and a wife’.
The Court had responded saying that the government has to look at the matter at hand with an open mind and not the position as stated by a law saying that changes are happening across the world. SG Tushar Mehta, however, maintained that the petition does not even deserve the filing of an affidavit.
