“No fundamental right” as Centre opposes same-sex marriage in Delhi HC


New Delhi: The Central government has told the Delhi High Court that in spite of decriminalisation of homosexuality under Section 377 of the Indian Penal Code, there is no fundamental right of same-sex marriage. (Abhijit Iyer Mitra & ors vs UOI)

The submission was made in Central Government’s affidavit filed in a petition seeking recognition of same-sex marriage under Hindu Marriage Act.

Seeking dismissal of petitions praying for recognition of same-sex marriages under existing laws, the Centre told Delhi HC that a marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values”, and that in reading down the provision of Section 377 of the IPC covering homosexuality, the Supreme Court had only decriminalised “a particular human behaviour” but “neither intended to, nor did in fact, legitimise the human conduct in question”.

It also said that judicial interference will cause “complete havoc with the delicate balance of personal laws”.

Any interpretation other than treating a husband as a biological man and a wife as a biological woman will make all statutory provisions unworkable, it said.

Referring to a Supreme Court judgment, the central government said that it only decriminalised a particular behaviour and did not legitimise it.

“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,” the Centre has said in its affidavit.

“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,” said the affidavit filed in response to a plea by equal rights activist seeking recognition of same-sex marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).

“In India marriage is not just a matter of union of two individuals but a solemn institution between a biological man and a biological woman… Despite the decriminalisation of section 377 of the Indian Penal Code, the petitioners (Mitra and others) cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country,” the central government said.

“It is submitted that any interference with the same would cause a complete havoc with the delicate balance of personal laws in the country,” the Centre said, adding that “it is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos”.

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