Centre opposes same-sex marriage, cites "Indian family unit concept"

In a filing to the Supreme Court on Sunday, the Center stuck to its earlier position that same-sex marriage was not compatible with the concept of the “Indian family unit,” which it said consists of “husband, wife and children who necessarily assume the biological male as the 'husband', the biological the woman as 'wife' and the children born of the union between the two – raised by the biological male as father and the biological female as mother'.

It said that despite the decriminalization of Section 377 of the Indian Penal Code, the petitioners cannot claim the fundamental right to recognize same-sex marriages under the laws of the country, they said.

In its affidavit filed in the Supreme Court, which is scheduled to hear the matter on Monday, the Center said cohabitation as partners and same-sex sexual relationship (which is now decriminalized) is not comparable to the concept of the Indian family unit urging the court to dismiss challenges to the current legal framework brought by LGBTQ+ couples.

It further argued that the registration of same-sex marriages also violates existing personal and codified legal provisions such as “degrees of prohibited relationship”; “conditions of marriage”; “ceremonial and ritual requirements” under the personal laws that govern individuals. “The very concept of marriage necessarily and inescapably presupposes a union between two persons of the opposite sex. This definition is socially, culturally and legally rooted in the very idea and concept of marriage and should not be disturbed or diluted by judicial interpretation.” said the center.

“Parties entering into a marriage create an institution that has public significance because it is a social institution from which several rights and obligations flow. The application for a declaration of marriage/registration has more implications than mere legal recognition. Family matters go far beyond borders. “The mere recognition and registration of same-sex marriage,” he added. At least four gay couples have asked the court to recognize same-sex marriages in recent months, setting the stage for a legal clash with Prime Minister Narendra Modi's union government.

“Among Hindus it is a sacrament, a holy union for the fulfillment of mutual obligations between a man and a woman. Among Muslims, it is a contract, but again it is assumed only between a biological man and a biological woman. It is not permissible to pray for a court order to change the whole legislative policy of a country deeply rooted in religious and social norms,” the government said in its affidavit.

On January 6, the Supreme Court struck down and transferred all such petitions pending before various high courts, including the Delhi High Court.