New Delhi, Thursday, 25th of February, 2021:
The Centre says, that any changes to the existing marriage laws, to recognize Same-Sex Marriages; would cause “a complete havoc with the delicate balance of personal laws in the country”.
Havoc! that’s the level same-sex marriages have been brought down to. The Centre, further in an in-human way; responded to the petitions seeking recognition of same-sex marriages under the Hindu Marriage Act; Special Marriage Act; and Foreign Marriage Act; by saying that marriage between individuals cannot be regarded as a private affair, as they invoke the “age-old customs, rituals, practices, cultural ethos and societal values” of India.
“Living together as partners and having sexual relationship by same sex individuals 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,” the Centre argued in the Delhi High Court.
This submission was made in an affidavit filed by the Central Government in a petition seeking recognition of same-sex marriage under the Hindu Marriage Act; and was filed in September last year by members of the LGBTQ+ community.
The Centre rebuffed a batch of petitions, saying that “Despite the decriminalization of Section 377 of the Indian Penal Code, the Petitioners cannot claim a fundamental right for same-sex marriage being recognized under the laws of the country,”.
One of these petition was filed by Dr. Kavita Arora and Ankita Khanna; 2 Delhi-based mental health professionals, on October 5, 2020. They were refused to sanctify their marriage under the Special Marriages Act, solely because they belonged to the same sex! Their petition sought that their marriage be recognized. They also demanded that the Special Marriage Act be declared unconstitutional; as long as it does not provide for the solemnization of a same-sex couple’s marriage.
One other such petition was filed by U.S. based Vaibhav Jain and Parag Mehta, who too were refused the registration of their marriage; this time, under the Foreign Marriage Act. After a court ceremony in Washington and a traditional Jain wedding in Delhi; the pair approached the Indian consulate in New-York for their marriage to be recognized under the Foreign Marriage Act. But they were denied registration.
In their petition, Jain and Mehta argue that the Foreign Marriage Act should be amended to accept marriages between consenting adults; regardless of the parties’ gender or sexual orientation.
Defence analyst Abhijit Iyer Mitra along with three other contemporaries filed the third PIL; for recognition of same-sex marriages under the Hindu Marriage Act.
A fourth petition on the issue, brought before the court of Justice Rajiv Sahai Endlaw and Justice Amit Bansal on Thursday, was lodged by four people; a lawyer working with a leading international law firm in the US, an artificial intelligence scientist in California, an economics consultant and a business development manager; who also argued that the denial of same-sex marriage was a denial of the rights guaranteed by the Constitution.
Injustice For The Community
The government also claimed that although marriage exists between two private persons, it “can not be relegated” to just a concept within an individual’s privacy realm.
“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.” Says the Centre.
The Centre submitted that; “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 the personal laws governing the individuals”.
“The fundamental right under Article 21 is subject to the procedure established by law; and the same cannot be expanded to include the fundamental right for same sex marriage to be recognized under the laws which in fact; mandate the contrary,” states the Centre.
The Division Bench of Justices Rajiv Sahai Endlaw and Amit Bansal, High Court of Delhi; has listed the cases for next hearing on April 20.