Same Sex Marriage is Not a Fundamental Right: Central Government to the Delhi High Court

This is however not the first time that the central government has stood against same-sex marriage.

Image courtesy: Bar and Bench

The central government made its submission during the hearing of a petition seeking recognition of same-sex marriage under the Hindu Marriage Act. In it’s affidavit the government said, ‘Despite the decriminalisation of Section 377 of the Indian Penal Code [hereinafter referred to as “IPC”], the Petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country.’

The government, Bar and Bench reported, observed that seeking declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition. It thus submitted, ‘Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender . Living together as partners and having sexual relationship by same sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.’ 

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Reportedly in its submission the government noting that marriages are regulated, permitted or proscribed only by a law made by the competent legislature has said, ‘Marriage is essentially a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws. 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.’ 

Noting that same sex marriage is not a fundamental right, the government has noted that, fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to extend to include the fundamental right for same-sex marriage. Marriage of same-sex persons would violate the existing personal as well as codified law, the Centre claimed seeking dismissal of the petition, has said the government according to Bar and Bench. 

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This is however not the first time that the central government has stood against same-sex marriage. In September 2020, the Solicitor General Tushar Mehta submitting to the Delhi High Court regarding the Public Interest Litigation by the Same Abhijit Iyer Mitra ‘under the HMA, the various provisions regulating marriages or prohibited relationships talk of husband and wife and therefore, who would be assigned these roles where a same-sex couple was concerned,’ The Wire had reported. 

The petition would be heard next on April 20, 2021.




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April 2024


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