The Centre on Thursday opposed pleas that sought legal recognition of same-sex marriage, citing that same-sex relationships cannot be compared with the traditional concept of the Indian family which has a husband, wife and children.  

The Centre in its reply to the pleas stated that: “Living together as partners and having a sexual relationship with a same-sex individual is not comparable with Indian family unit concept of a husband, wife and children, which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’ and children born out of the union.” 

Centre: Same-sex marriage is not a fundamental right 

The Centre in its affidavit claimed that same-sex marriages can’t be claimed as an individual’s fundamental right under the Indian Constitution. The Centre substantiated its claim by citing a paragraph from the Navtej Johar judgment stating: “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage though marriage is a union.” 

The Central government’s argument stated that when it came to marriages, divorces or adoptions, “personal laws or codified law occupies the fees.”   

Centre: Only parliament can decriminalize same-sex marriages 

The Centre maintained its position on the fact that same-sex marriage legalization can’t come from the courts. The power to legalize same-sex marriages lies in the hand of Parliament that enacts and amends laws that are “governing human relations” that are in the context of “societal values” and acceptability of the nation. Unlike the Delhi government, the Centre claimed that same-sex marriages can be permitted by legal recognition of marriage that can only be decided by the parliament legislature. The legal nature of the issue can never be a matter of judicial adjudication.  

Marriage can only transpire between man and woman 

According to the Centre, marriage is not just a union between two people, but an institution between a “biological man” and “biological woman”. Furthermore, the Central Government believes that marriages aren’t relegated to a domain of privacy but rather it’s a public concept. Additionally, the Centre also claimed that a true marriage is a social institution that puts the responsibility on the two spouses to ensure psychological and mental growth of their offspring in a “natural way”. 

The Centre concluded its decision and stated that any interference with the marriage laws that exist today can “cause complete havoc” on the delicate balance the personal laws in this country has. 

Who were the petitioners?  

The Centre’s reply came in the response of 3 petitions that were filed last year.  

Dr. Kavita Arora, and Ankita Khanna, were the first petitioners who sought the legal enforcement of the fundamental right to choose a partner. They filed the plea after their application of marriage under the Special Marriage Act was rejected in Delhi by a Marriage officer on the ground that they were a same-sex couple.  

The second petition came from an overseas citizen of India Parag Vijay Mehta and Vaibhav Jain, an Indian Citizen. Parag and Vaibhav got married in Washington DC, USA, in 2017 and their application for marriage registration under the Foreign Marriage Act was rejected in New York by the Consulate General of India.  

The third plea was filed by Abhijit Iyer, Gopi Shankar, G Ooravasi and Giti Thandani, all four members of the LGBT community. Abhijit and three others argued that marriage under the Hindu Marriage Act does allow for same-sex marriage. The LGBT community members cited Section 5 of the Hindu Marriage Act which states that “Marriage can be performed between ‘any two Hindus’ under the Act.”