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The Center has opposed in the Supreme Court a batch of pleas seeking legal validation of same-sex marriage, saying it would cause complete havoc with the delicate balance of personal laws and acceptable social values.
In an affidavit before the Supreme Court which is scheduled to hear the matter on Monday, the government said that despite the decriminalization of Section 377 of the Indian Penal Code, petitioners cannot claim a fundamental right to have same-sex marriage recognized under the Act. the laws of the land.
At the same time he maintained that although the Center limits its recognition to heterosexual relationships, there can be other types of marriages or unions or personal understanding of relationships between individuals in society and these are not “illegal”.
He said that western decisions cannot be imported against any basis in the jurisprudence of Indian constitutional law in this context, while asserting that giving recognition to human relations is a legislative function and can never be the subject of a judicial ruling.
“Marriage, as an institution in law, has many statutory and other consequences under various legislative enactments. Therefore, any formal recognition of such a human relationship cannot be considered as a matter of privacy between two adults only,” he said. .
The Center said that the institution of marriage between two individuals of the same sex is not recognized or accepted in any uncodified personal laws or in any codified statutory laws.
The government said that the idea of marriage itself necessarily and inevitably presupposes a union between two people of the opposite sex at the outset, and this definition is socially, culturally and legally embedded in the very idea and concept of marriage and should not be disrupted or weakened by judicial interpretation.
“It must be remembered that giving recognition and giving recognition rights to a human relationship that has its consequences in law, and privileges, is essentially a legislative function and can never be the subject of a judicial ruling. The prayer made by the petitioner before this court is, therefore, completely unsustainable, unsustainable and misplaced,” he said.
The Center said, “It is held that despite the decriminalization of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right to have same-sex marriage recognized under the laws of the country.”
He said that even if such a right is claimed under Article 21 of the Constitution, such a right can be abridged by a competent legislature on constitutionally permissible grounds including the legitimate interest of the state.
“It is submitted that there cannot be an unencumbered right under Article 21 and it cannot override other constitutional principles,” the government said, adding that Parliament has designed and framed marriage laws, which are governed by personal laws/laws coded applicable to various practices. religious communities, to recognize the union of man and woman only to be able to punish legally, thereby claiming legal and statutory rights and consequences.
“It is felt that any interference with the same would wreak havoc with the delicate balance of personal laws in the country and acceptable social values,” he said.
The Center said that although there may be various other forms of marriages or unions or a personal understanding of relationships between individuals in society, the State limits the recognition to the heterosexual form.
“The State does not recognize these other types of marriages or unions or personal understanding of relationships between individuals in society but the same is not illegal,” he said.
The government said the registration of same-sex marriages also violates provisions of personal law as well as codified law such as “prohibited degrees of relationship”, “conditions of marriage” and “ceremonial and ritual requirements” under personal laws which governs. the individuals.
He said that marriage between a biological man and a biological woman takes place either under the personal laws or codified laws namely, the Hindu Marriage Act, 1955, the Christian Marriage Act, 1872, the Parsi Marriage and Divorce Act, 1936 or the Special Marriage Act. , 1954 or the Foreign Marriages Act, 1969.
“Family matters go far beyond the recognition and registration of marriage between people of the same sex only. Living together as partners and having sexual relations by individuals of the same sex (which is decriminalized now) similar to the Indian family unit concept of husband, wife and children which necessarily presupposes a biological man as ‘husband’, a biological woman as ‘wife’ and the children born of the union between the two – who are brought up by the biological man as father and the biological woman as mother,” he said.
The Center said that the institution of marriage generally has sanctity and in large parts of the country, it is considered a sacrament, a holy union and a “sanskar”.
“In our country, despite statutory recognition of the marriage relationship between a biological man and a biological woman, marriage necessarily depends on old customs, rituals, practices, cultural ethos and social values”, he said.
The government said that all these indicate that marriage in India is a bond between a biological man and a biological woman only and that is the legislative policy of the legislature and petitioners cannot pray for court mandamus to change the legislative policy.
He said that this particular human relationship, in its current form, which is between a biological man and a biological woman is accepted statutorily, religiously and socially and any recognized deviation from this human relationship can only be before the competent legislature. happen
He added that although a marriage between two private individuals could have a profound effect on their private lives, it cannot be dismissed as just a concept within the domain of an individual’s privacy when it comes to the question of formalizing their relationship and the resulting legal consequences of it is matter. in question.