On March 13, the Supreme Court (SC) of India referred the writ petition seeking recognition of same-sex marriage to a five-judge Constitutional Bench that will begin hearing the plea on April 18.
The Government of India submitted a counter-affidavit to the SC opposing recognising same-sex marriage. The Government of India argued that decriminalising section 377 of the Indian Penal Code does not give rise to claims seeking recognition of same-sex marriage.
On March 13, Union Law Minister Kiren Rijiju said that the Government of India is not interfering in the personal lives of anyone by opposing legal recognition for same-sex marriage. He said, “Government not interfering in personal life of anybody. Personal freedom of citizens is never regulated by government. When it comes to institution of marriage, it is a matter of policy. There is a clear distinction.”
The Government of India’s counter-affidavit stated, “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,” Live Law reported.
The Government of India said, “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.”
Furthermore, the Government of India said that all personal laws and statutory enactments recognise marriage as a union between a biological man and a woman; therefore, there is a clear legislative intent which makes judicial intervention to rewrite the law impermissible.
The Government of India argued legitimate state interest in recognising only heterosexual marriage. It 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,” Live Law reported. “While other forms of unions may exist in the society which would not be unlawful, it is open for a society to give legal recognition of the form of union which a society considers to be quintessential building block for its existence,” the Government of India submitted in its counter-affidavit to the SC.
The Government of India argued that giving legal recognition to same-sex marriage would complicate issues related to adoption, divorce, maintenance, inheritance, etc., considering all statutory provisions are based on marriage between a man and a woman.
The Government of India argued that the non-recognition of same-sex marriage does not violate any fundamental rights under Part III of the Constitution of India. Furthermore, the Government of India submitted that there is a reasonable classification for recognising only heterosexual marriage and said, “There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages),” Live Law reported.
The Government of India argued that the non-recognition of homosexual marriage could not be construed as discriminatory, stating, “This is because no other form of cohabitation enjoys the same status as heterosexual marriage including Heterosexual live-in relationships…To fall foul of Article 15(1), there should be discrimination only on the basis of sex. It is evident that this condition precedent is not at all satisfied in the present case,” Live Law reported.
