Pleas To Legalise Same-Sex Marriages: Here’s A Summary Of The Centre’s Affidavit In The Supreme Court

On 12 March 2023, the Centre submitted its affidavit on the issue of legal recognition of same-sex marriages in the Supreme Court.

While many have criticised the Centre’s stance on the issue, on a purely legal basis, the affidavit by the Centre can be said to be based on settled jurisprudence.

The affidavit commences with the argument that the notion of marriage 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.

The affidavit relies on a wide variety of judgements, given under different legislations, which recognise and hold that marriage is a legal union of a man and woman as husband and wife.

Only the legislature is competent to legalise same-sex relationships: Where social, psychological and other impacts can be debated

In any society, conduct of people and their inter-se relationship is always governed and circumscribed by personal laws, codified laws or in some cases even customary laws/religious laws.

The laws working in a nation evolve on the basis of societal values, beliefs, cultural history and other factors.

The legislature reflects the collective wisdom of the nation, based upon cultural ethos, social standards and such other factors.

Hence, only the legislature is competent to enact a law which would govern human relationships.

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.

The affidavit also makes clear that Western decisions are without any basis in the Indian Constitutional jurisprudence and cannot be applied in the Indian context.

Importantly, celebration of a marriage gives rise to not just legal but moral and social obligations, particularly the reciprocal duty of support placed upon spouses and their joint responsibility for supporting and raising children born of the marriage and to ensure their proper mental and psychological growth in the most natural way possible.

As a legally married couple have a right to adopt, the competency to legalise same-sex marriages should be within the exclusive domain of the legislation where social, psychological and other impacts on society, children etc, can be debated.

This will ensure that wide ranging ramifications of recognising such sacred relationships are debated from every angle and legitimate state interest can be considered by the legislature.

No recognition under Constitutional principles

The affidavit also states that decriminalisation of Section 377 of the IPC in Navtej Singh Johar versus UOI cannot be read to claim a fundamental right for same-sex marriage to be recognised within Indian laws.

The court specifically said in Navtej Johar, that “when we say union, we do not mean union of marriage as union means companionship in every sense of the word, be it physical, mental, sexual or emotional”.

It was stated that after the decision in Navtej Johar, the only change is that persons of the same sex can engage in consensual sexual intercourse without being held criminally liable under Section 377 of the Indian Penal Code.

It also said that while sexual intercourse between same sex has been decriminalised, it has by no means been legitimised.

The Centre also submitted that there is no violation of Article 14 — right to equality of same-sex couples if same-sex marriages are not recognised.

Same sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically.

Additionally, the special status, which is granted to heterosexual marriage cannot be construed as a discrimination against same sex couples under Article 15(1) as no other form of cohabitation enjoys the same status as heterosexual marriage including heterosexual live-in relationships.

Moreover, with respect to the argument that under Article 19 citizens have a right of association, it was stated that while Article 19 guarantees a right to association, there is no concomitant right that such associations must necessarily be granted legal recognition by the state.

With respect to Article 21 — right to privacy, the affidavit states that while marriage may be private between two individuals, it cannot be relegated to merely a concept of privacy of an individual when the question of formalising their relationship and the legal consequences flowing therefrom is involved.

Therefore, entering into a marriage is to enter into a relationship that has public significance as well, as against a purely private domain of individuals.

Allowing same-sex marriage would amount to violation of personal laws

Analysing various personal laws applicable to different religions, the Centre’s affidavit also stated that marriage either between Hindus, Muslims or any other religion as per their applicable personal law is a union between a man and a woman and cannot be read to include same-sex couples.

Be it the Hindu Marriage Act, 1955; Special Marriage Act, 1954; Muslim Personal Law (Shariat) Application Act, 1937; Muslim Women (Protection of Rights on Divorce) Act, 1986; and even the Indian Penal Code, they have recognised marriage as union between two persons of opposite sex and use the term ‘husband’ and ‘wife’.

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 was stated in the affidavit that a plain reading of the impugned laws makes plain that the legislative intent was to recognise marriage as being the union of one man and one woman only.

It was stated that the question is not whether same-sex relationships can be fitted in the present legal framework, but where the legislative intent is limited to recognition of marriage and benefits associated to heterosexual couples, it is impermissible for the court to override the same.

Moreover, seeking solemnisation of a marriage has more ramifications than just legal ones.

Living together as a same-sex couple 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.

These children are then reared by the biological man as father and the biological woman as mother.

A three-judge bench of the Supreme Court led by Chief Justice of India D Y Chandrachud referred the matter to a Constitution Bench of five judges and listed the case for final arguments on 18 April.