No fundamental right of same-sex marriage, legal recognition: Centre to Delhi High Court

by Meenal Bhatia
No fundamental right of same-sex marriage, legal recognition: Centre to Delhi High Court

February 25, 2021

Advocates of LGBTQIAA+ felt at ease after the Hon'ble Supreme Court decriminalized coitus between consenting adults in the landmark judgement of reading down section 377 of the Indian Penal Code. As a natural course, the next step was to seek legal recognition for same-sex marriages.

Not all is nice and hazy for the LGBTQIAA+ community. After a batch of petitions seeking legal recognition and registration of same-sex marriages was filed at the Delhi Court, the Centre has filed its reply affidavit reinstating the heteronormative outlook of unions. The reply states, “same-sex individuals who are living together and have sexual relationships do not match the “Indian Family Unit Concept’ of a husband, wife and children.
The affidavit comes as a reply to the petition dated September 2020 seeking recognition of same-sex marriages under the Hindu Marriage Act.

"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."

- Central Government (Affidavit Reply)
same-sex marriage India fundamental right
The reply comes as a shocker to many since, in the petition seeking decriminalisation of same-sex intercourse, the Centre decided not to file a response and instead gave a silent nod to the said relationships. While many applauded the state’s progressive outlook, it is disheartening for others to see a 180 degrees turn about in its original stance.
The Centre decided to not rely on the stats, facts, or the change in individual outlook. It instead chose to bank on religious and cultural sentiments. The affidavit states – “despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriages being recognized under the laws of the country. By and large, the institution of marriage has sanctity attached to it, and in major parts of the country, it is regarded as a sacrament. In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values. “
scool buzz same sex marriages not supported by centre
Same sex marriages not supported by Centre
The reply further stated that seeking a declaration for solemnisation or registration of marriage has more ramifications than simple legal recognition. Thus, the Centre asserted that legal recognition of marriage is essentially a question to be decided by the legislature and cannot be a subject of judicial scrutiny.
The Centre suggested that Navtej Singh Johar (case reading down 377) does not extend right to privacy to include marriages of the same gender. The reply, settled by Solicitor General Tushar Mehta and drafted by Advocates Kanu Agrawala and Suparna Srivastava and would be common for all petitions for recognition of same sex marriages.
Aditya Madiraju and Amit Shah pioneers of same sex marriage India
Aditya Madiraju and Amit Shah- pioneers of same sex marriage India
The reply comes as a major led down to the advocates of individual choices since it was very recent when the Apex Court of the country actually apologized for the agony the LGBTQIAA+ community has suffered in all these years. Hopefully, the Hon’ble Bombay High Court will hold that view and make India a more inclusive country.
scool.buzz will keep you updated on all the recent developments in the case of Abhijit Iyer Mitra & Ors. Vs. UOI, stay tuned.


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