“Marriage Between Man and Woman,” Says Indian Govt as it Opposes Legalising Same-Sex Marriages


The Central Government yesterday sought dismissal of petitions seeking recognition of same-sex marriages in India under the Hindu Marriage Act and Special Marriage Act and Foreign Marriage Act, as it opposed granting marriage rights to members of the LGBT Community.

Solicitor General Tushar Mehta, on behalf of the Centre, said that marriage is a sacred institution and can only be between a biological man and a biological woman, and that sexual relationships between two same-sex partners cannot be granted the same status.

“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..”

The Centre also said that no law recognises same-sex relationships in the country. “‘Marriage’ is essentially a socially recognized 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.”

Further, the government opposed expanding the Navtej Singh Johar judgement in this case and said the petitioners could not claim a fundamental right to marriage under Article 21 of the Constitution. “Despite the decriminalisation of Section 377 of the Indian Penal Code [hereinafter referred to as “IPC”], the Petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the countryThe dictum of Navtej Singh Joharsupra, does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contravention of prevailing statutory laws.”

The government also submitted that only the legislature had the right to make a law on such relationships, and the Court cannot rule on this. “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. The question as to whether such a relationship be permitted to be formalised by way of a legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication.”

Law website Bar and Bench also reported that SG Tushar Mehta had informed the Court that the Centre’s reply would be the same for all the petitions. The Court fixed the next hearing on April 20th.

Sukhdeep Singh