New Delhi: Same-sex marriage is against the “Indian notion of marriage” which “necessarily and essentially presupposes a union between a biological male and a biological female”.
With this claim and relying on the religious definition of marriage, the Modi government sunday Opposed a batch of petitions in the Supreme Court to direct the government to allow registration of same-sex marriages.
The central government claimed that recognizing marriage between same-sex couples would also lead to a deviation from the Indian concept of the family unit, which Children born from the union of a biological man and a biological woman are brought up by both the father and the mother.
There is a sacredness attached to the institution of marriage, and in major parts of the country it is considered a “sacrament, a sacred bond and a sacrament” and essentially a relationship between a man and a woman “socially, culturally and legally”. is connected”, the government submitted in its affidavit.
Therefore, the court should not disturb or dilute the concept of marriage by judicial interpretation, as it would change the entire legislative policy which is “deeply rooted in religious and social norms”, the government said.
Rejecting the petitioners’ contention that marriage is a private matter, the government argued that it is a concept emanating from the personal laws of citizens. Despite statutory recognition of the relationship between a man and a woman, marriages depend on age-old customs, rituals, practices, cultural ethos and social values. Therefore, marriage has more than personal significance and cannot be claimed as a private matter between two persons.
The affidavit states that it is an important institution which “provides security, support and companionship to our society and also plays a vital role in the upbringing of children and their mental and physical well-being.”
It further states, “The celebration of marriage … imposes on the husband and wife the reciprocal duty of support and to support and bring up the children born of the marriage and to ensure their proper mental and psychological development in the most natural manner.” gives rise to their joint responsibility for.” ,
However, the government clarified that although the state recognizes heterosexual relationships as marriage, homosexual relationships are not illegal. Being in a legal relationship is not tantamount to marriage and cannot be claimed as a fundamental right, as demanded by the petitioners.
2018 has been cited in the affidavit SC judgment that section 377 of the Indian Penal Code has been decriminalised, a Victorian-era law that criminalized sex “against the order of nature”, including physical relations between same-sex couples, even as the top court drew the distinction between a marriage and a union. Though marriage is a union, but as a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional, the Supreme Court had noted in its judgment. 2018 Verdict in Navtej Johar’s case
While aspects of marriage are codified with the development of jurisprudence, the conduct of the parties and their inter-sex relations have always been governed and governed by personal laws. In some cases, customary laws were also codified, the government said.
“Among Hindus, it is a sacrament, a sacred union between a man and a woman for the performance of mutual duties. Among Muslims, it is a contract but again envisaged only between a biological man and a biological woman. Goes”, the government maintained in its response.
Registration of same-sex marriages would be in violation of existing personal as well as codified legal provisions, such as ‘restricting degrees of relationship’; ‘Conditions of Marriage’; ‘ceremonial and ritualistic requirements’ under personal laws governing individuals.
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‘Marriage between biological male, biological female’
The 56-page affidavit provides an insight into the legislative intent behind the marriage laws in the country, which the government maintains are governed by personal and codified laws relating to the customs of various religious communities.
Accordingly, the penal law of India describes marriage only as a relationship between a biological “male” and a biological “female”.
Similarly, the Hindu Marriage Act and other family laws and penal laws provide clear allusions to the same through specific references to opposite sexes referred to as “husband” and “wife” at several places; “male and female”; “Bride” and “Bride”; “dad and mom”; “minor son”, “minor daughter”; “His and Hers”.
The affidavit states that this is an indication that in India, “marriage is only a bond between one biological male and one biological female and it is the legislative policy of the law making body.”
In a same-sex marriage, it is neither possible nor possible to define one as “husband” and the other as “wife” “with reference to the legislative scheme of the various statutes”. it said, As a result, the statutory scheme of many Acts will be rendered ineffective. (no practical purpose)It will be (and it will be) impossible to make these laws workable in same-sex marriages.
The government cautioned that any interference with the existing system could lead to “complete destruction of the country’s delicate balance of personal laws and accepted social values”.
Any other interpretation other than treating the ‘husband’ as a biological male and the ‘wife’ as a biological female would render all the statutory provisions impracticable besides being completely contrary to the consistent legislative policy based on the cultural ethos and social values of the country. Will make Added.
‘Leave it to the legislature’
Since the legislative intent clearly limits the legal recognition of marriage and the benefits attached to heterosexual couples, the petitioners cannot ask the court to change or rewrite the legislative policy, the government said.
“It is submitted that such relationships can only be governed, regulated, permitted or restricted by law made by a competent legislature. It is only in such competent legislature that the power to govern human relationships in the context of social values and national acceptability Legislative wisdom is vested to implement the said law,” submitted the affidavit.
No codified statutory law or uncodified personal law recognizes the institution of marriage between two persons of the same sex. Any recognized deviation of this human relationship – essentially between a man and a woman – can only be before the competent legislature, asserted the government’s affidavit.
In addition, marriage brings with it the right to adopt and other ancillary rights. Therefore, it is necessary that such issues are before a competent legislature, where the social, psychological and other effects on children can be debated.
The government also underlined that there cannot be any fundamental right for recognition of a particular type of social relationship.
“While it is certainly true that all citizens have the right of association under Article 19, there is no concomitant right that such associations must necessarily be accorded legal recognition by the State,” it said, “nor the life any implicit approval of same-sex marriage should be read to include the right to and freedom under Article 21,,
(Edited by Smriti Sinha)