On yet another occasion of its opposition to same-sex marriages, theꦯ Ce💧ntre on Sunday questioned the maintainability of pleas seeking legal recognition of same-sex marriages in the Supreme Court. A five-judge constitutional bench of the apex court on Tuesday, April 18, is set to start hearing the clutch of petitions seeking legal recognition of same-sex marriages.
In the same s𓃲ubmission, the Centre said the petitions represent "urban elite" views. Earlier, the Centre said in court that same-sex marriages would "create havoc" in society.
Earlier on January 6, the Supreme Court transferred to itself various petitions seeking recognition of same-sex marriages in different high courts. The petitions filed so far seek recognition under Hindu Marriage Act (HMA), Special Marriage Act (SMA), and For♉eign Marriage Act (FMA).
Though homosexuality was decriminalised in 2018, same-🐟sex marriages continue to be unacknowledged and unrecognised by Indian laws. Both the Government of India and the ruling Bharatiya Janata Party (BJP) have opposed any recognition of same-sex marriages.
What did the Centre tell Supreme Court?
Terming the petitions seeking legal validation of sam⛄e-sex marriage as one which reflects an "urban elitist" view, the Centre has told the Supreme Court that recognition of marriage is essentially a legislative function which the courts should refra🌊in from deciding.
Questioning the maintainability of the petitions, the Centre said what is presented before this court is a mere urban elitist vie༒w for the purpose of social acceptance.
"The competent legislature will have to take into account broader views and voice of all rural, se♛mi-rural and urban population, views of religious denominations keeping in mind personal laws as well as and customs governing the field of marriage together with its inevitable cascading effects on several other statutes," the Centre said.
The submissions were made in an affidavit filed in response to a batch of pleas se🏅eking legal validation of same-sex marriage.
The affidavit stated that marriage is a socio-legal institution which can be created, recognised, conferred with legal sanctity and regulated only𝔉 by the comp🎶etent legislature by way of an Act under Article 246 of the Constitution of India.
"It is submitted that therefore, it is the humble request of the applicant the issues raised in the present petiti⭕on be left to the wisdom of the elected rep🔯resentatives of the people who alone shall be the democratically viable and legitimate source through which any change in the understanding and/or the creation/recognition of any new social institution can take place," the Centre said.
What do PILs on same-sex marriage recognition say?
A number of petitions were filed in recent years in various high courts for the legal recognition of same-sex marriages. Gender rights campaigners believe recognising same-sex marriages is the next logical step after the decriminalisation of homoꦯsexualit✨y.
Since personal affairs such as marriage and divorce are governed by laws specific to communities in India, theꦉ recognition of same-sex marriages has also been sought under community-specific laws, most notably under the Hindu Marriage Act (HMA). The HMA also applies to Budꦜdhists, Sikhs, Jains, and all the sects of Hinduism.
One of the earliest petitions was filed in 2020 in the Delhi High Court by Abhijit Iyer-Mitra. He argues that the HMA does not dist♎inguish between heterosexual and homosexual marriages in its wording. To drive this point, he argues that HMA requires "any two Hindus" for marriage, according to a copy of the petition accessed by Outlook.
While listing the conditions for marriage, HMA’s Section 5 says, "A marriage may be solemnised betwee🐷n any twཧo Hindus…."
Other petitions have also sought recognition under Special Marriage Act (SMA), which is a secular law. The reasoning is similar to the one in Iyer-M🅷itra’s petition regarding the Hindu Marriage Act — the gender-neutral wording. Legal experts highlight that SMA is more liberal than HMA with its wording.
Listing the conditions related to solemnising marriages under SMA,𒈔 the law’s Section 4 says "a marriage between any two persons may be solemnised under this Act (emphasis added)" and does not mention ‘husband’ or ‘wif🍨e’ in its sub-section containing the conditions.
Listing the age eligibility, SMA’s Section 4 (c), says, "The male has completed the age of twenty-one years and the female the age of eigh🀅teen years." However, the sub-section does not explicitly indicate that🎃 this eligibility is for a male to marry a female, and it is argued that this can be read as a gender-neutral provision.
What did Centre say earlier?
Earlier, both the Centre and BJP have opposed the recognition෴ of same-sex ꦚmarriages.
The BJP-led Union government has repeatedly challenged any recognition of same-sex marriages, saying that it's not legitimised and recognisi🐎ng it would create havoc in Indian society.
In February 2021, the Centre said marriage is only between a man and a woman and that interference in current marriage laws "would cause havoc" in society, according to India Today. The Centre further said that same-sex marriage cannot be a fun♏damental right.
"Despite the decriminalisation of Section 377 of the Indian Penal Code (IPC), the Petitioners cannot claim🐲 a fundamental right for same-sex marriage...[Decriminalisation of homosexuality] applies to aspects which would be covere🌃d within the personal private domain of individuals [akin to the right to privacy] and cannot include the public right in the nature of recognition of same-sex marriage and thereby legitimizing a particular human conduct," said the Centre, as per India Today.
In December 2022, BJP leader Sushil Modi termed the campaign for same-sex marriage recognition a "left-liberal" ploy to change "ethos of India&quo✤t;. He also questioned the rܫole of the Judiciary in the matter.
"Two judges can't decide on such an important social issue, which warrants a debate in Parliament and in society at large. Some left-liberals and activists are making efforts to change the ethos of the country. I urge the government to strongly argue again💯st same-sex marriage in court," said Modi at the time.
In February, the Centre in an affidavi🅺t in the Supreme Court said that while same-sex unions or non-heterosexual marriages are not unlawful, there is no recognition either and the𒐪re is no legitimacy despite the decriminalisation of homosexuality in 2018.
The Centre also said the fundamental right to life and liberty cannotཧ include any implicit approval of same-se💫x marriage.
The Centre added that fol♛lowing a Supreme Court verdict in 2018, the only change is that persons of the same sex can engage in consensual sexual intercourse without b﷽eing held criminally liable under Section 377 of the Indian Penal Code.
Referring to the 2018 verdict, the government said that the dictum of it does not extend the right to privacy to include a fundamental right in the nature of a right to marry by two individuals of the same gender in contraventio🥃n of prevailing statutory laws.
It said the observations in the 2018 verdict cannot be treated as conferring a fundamental right of being recognised in marriage under Indian per♚sonal laws whether codified or 📖otherwise.
(With PTI inputs)
