Centre opposes same-sex marriage in Delhi High Court

New Delhi: The Centre on Thursday told the Delhi High Court that living together as same-sex partners is not comparable with the Indian concept of a family unit.

The government stated this in a counter affidavit filed on petitions filed by same-sex couples seeking enforcement of fundamental right of choice of partner. "Despite the decriminalisation of Section 377 of the Indian Penal Code, the petitioners cannot claim a fundamental right for same-sex marriage," the government further said.

In India, marriage is a bond between a biological man and a biological woman, it added.

One of the couples had sought direction from the court to declare that the Special Marriage Act, 1954 ought to apply to all couples regardless of their gender identity and sexual orientation, and reading the SMA so as to apply to all couples irrespective of their gender identity and sexual orientation.

The other couple, an Indian citizen and an Overseas Citizen of India are two gay men, who married in Washington DC, US in 2017, stated that the Foreign Marriage Act, 1969 in as much as it discriminates against same-sex couples by denying legal recognition of their marriage is ultra vires of the Constitution of India. Meanwhile, four more people belonging to the gay and lesbian community urged the Delhi High Court on Thursday to declare that marriages between any two persons irrespective of their sex be solemnised under the Special Marriage Act (SMA).

The Delhi government in response to a similar petition filed earlier has said that there is no provision in the SMA under which two women can be married, and it would be willing to abide by the court's direction. The latest petition is in addition to three pleas already before the high court seeking recognition of same sex marriages under the SMA, Hindu Marriage Act (HMA)and Foreign Marriage Act (FMA).

A bench of Justices Rajiv Sahai Endlaw and Amit Bansal sought response of the Centre on the joint plea by three men and a woman, who have urged the court to also declare that the SMA applies, regardless of sex, to any two persons who wish to marry by reading down any gender or sexuality-based restrictions contained in the Act. In their plea, filed through advocates Meghna Mishra and Tahira from Karanjawala and Co law firm, the petitioners have also sought that the provisions in the SMA which require a 'male' and a 'female' for solemnisation of a marriage be declared as unconstitutional unless they are read as "neutral to gender identity and sexual orientation".