Hyderabad: Opposing same-sex marriages, the central government told Delhi High Court that marriage in India is not just a union of two individuals but an institution between biological man and woman.
"There is a legitimate state interest in limiting recognition of marriage to persons of the opposite sex only, and that the institution of marriage is not merely a concept relegated to the domain of privacy of an individual," the government said in an affidavit.
The government said statutory recognition of marriage as a union between a 'man' and a 'woman' is intrinsically linked to the recognition of a heterogeneous institution of marriage and the acceptance of the Indian society based on its cultural and societal values.
The central government said that 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.
Centre said contrary to the popular view that homosexuality was legalized by the Supreme Court in the case of Navtej Singh Johar vs. Union of India.
Centre said the court had "only made a limited declaration to decriminalize a particular human behavior, which was a penal offence under S.377 IPC. The said declaration was neither intended to nor did, in fact, legitimize the conduct in question."
Centre said legalizing same-sex marriages was not the purview of the court and a decision on the same has to be taken by the legislature. "The question as to whether such a relationship be permitted to be formalized by way of legal recognition of marriage is essentially a question to be decided by the legislature and can never be a subject matter of judicial adjudication. The constitutional court can analyze the existing rights but cannot create a new right by the process of judicial adjudication. The prayer made by the petitioner before this court, is, therefore, wholly unsustainable, untenable and misplaced," Centre said.
The central government noted that considerations of social morality are relevant in considering the validity of legislation and it is for the legislature to judge and enforce such social morality and public acceptance based on Indian ethos.
Centre's statement evoked a sharp response from netizens and LGBTQI activists.
"Your idea of 'marriage' is sadly archaic. I personally don't care much for a patriarchal institution where a man 'owns' HIS wife & children to protect HIS private property. The #LGBTQI should fight for recognition of a more evolved form domestic partnership; not #samesexmarriage," tweeted LGBTQI activist and filmmaker Apurva Asrani.
Another Twitter user said denying millions of their right to live, love, and marry is a gross injustice. "The government should repeal section 377 & set up a commission for improving lives of LGBTQ community. Center's vacillation on this matter is childish. Is it run by bureaucrats or theocrats? #article377," he said.
"Centre's reply is against the entire spectrum, not just the petitioners. Terms such as 'biological man', 'biological woman', 'natural way' are transphobic, violates NALSA. But again, this is the same government that passed the draconian Trans Bill," said Karan Tripathi.
Seconding him, the filmmaker tweeted "Now they want to curb #LGBTQI rights. Centre conveniently forgets that NO cultural definition can be greater than Human Rights / Equality/ Dignity."