SYED KHALIQUE AHMED
NEW DELHI, OCT 26
The Central government has vehemently opposed the marriage between two individuals of the same sex.
Solicitor General of India Tushar Mehta submitted to this effect before the Delhi High Court on October 25.
The final hearing in the matter is scheduled for November 30. The issues are significant because they involve societal morality and the long-term impact of sexual aberration on children and youth.
The high court is hearing five petitions, including one filed by an Overseas Citizen of India (OCI), seeking legislation for the institution of marriage and registration of marriage under the Hindu Marriage Act, 1955, and the Special Marriage Act, 1954. (There is, however, no Muslim Marriage Act in India. Muslims have to register their marriages either under the Special Marriage Act, 1954, or under the State Marriage Registration Act of a particular state where the wedding is solemnized or in the state where the couples stay.)
Arguing on behalf of the Centre, Mehta said that marriage in India is considered only between a “biological man and a biological woman”.
Responding to questions raised by Karuna Nundy, an advocate representing a same-sex couple, Mehta said that all personal laws and statutory laws contemplated the marriage only between “a biological man and a biological woman.”
Supreme Court decriminalizes homosexuality, silent on homosexual marriages
The Central government took a clear stand against same-sex marriages, despite the Supreme Court decriminalizing homosexuality in the Navtej Singh Johar case in 2018.
But the apex court did not make any comment on the registration of same-sex marriages.
The silence of the apex court on the issue has led to the current situation after the marriage officers in Delhi refused several applications for marriage registration between two individuals of the same sex.
In February this year, in an affidavit before the Delhi high court, the Central government had made it clear that the petitioners could not claim recognition of same-sex marriage as a fundamental right.
Personal laws, statutory laws don’t allow same-sex marriages: Centre
The affidavit said that “the institution of marriage between two individuals of the same sex is neither recognized nor accepted in any codified personal laws or any codified statutory laws.”
The affidavit contended that the legislature could give same-sex marriage legal recognition, not the judiciary.
Legislature to decide recognition of marriage, not the courts
“The question as to whether such a relationship be permitted to be formalized by way of a 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 affidavit maintained.
Indian ethos accepts marriage between a “biological man and a biological woman”: Centre
The affidavit claimed that “the marriage in India is not just a matter of union of two individuals, but a solemn institution between a biological man and a biological woman.”
The affidavit rejected the petitioners’ contention that the right to privacy guaranteed under Article 21 of the Constitution included the fundamental right for same-sex marriage to be recognized under the country’s laws.
“Entering into marriage is to enter into a relationship that has public significance as well,” the affidavit declared.
The affidavit had further argued that marriage in India depended upon “age-old customs, rituals, practices, cultural ethos and societal values.”
It also said that “living together as partners and having a sexual relationship by same-sex individuals (which is decriminalized now) is not comparable with the Indian family unit concept of a husband, a wife, and children, which necessarily presupposes a biological man as a’ husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.”
Elaborating further on the concept of marriage in Indian traditions, the affidavit said that there were terms like “bride”, “bridegroom, “father, “mother,” etc., to claim marriage between a man and a woman.
The affidavit further contended that “there exists a legitimate interest in limiting the legal recognition of marriage to persons of opposite sexes only.”
“….and it is for the legislature to judge and enforce such societal morality and public acceptance based upon India ethos,” the affidavit asserted.
Petitioners who filed pleas for recognition of same-sex marriages
The petitioners include Dr Kavita Arora and therapist Ankita Khanna who marriage registration application was rejected by Kalkaji (South Delhi) marriage officer.
Another petition was filed by OCI cardholder Parag Vijay Mehta and Indian citizen Vaibhav Jain. They married in Washington in 2017. After the Consulate General of India denied their marriage registration in New York, they moved the Delhi high court to register marriage under the Foreign Marriage Act.
A third petition in the form of a Public Interest Litigation (PIL) seeking registration of marriage under the Hindu Marriage Act was filed by four members of the LGBTQ+ (lesbian, gay, bisexual, transgender, queer, and others) Abhijit Iyer Mitra, a foreign policy expert, Giti Thadani, founding member of the Sakhi collective journal of contemporary and historical lesbian life in India, Gopi Shankar, a Tamil Nadu-based intersex activist and G. Oorvasi, a transgender activist.
The fourth petition was filed by California-based artificial intelligence (AI) scientists seeking marriage registration for LGBTQ+ individuals under the Special Marriage Act.
The fifth petition was filed by Joydeep Sengupta and Russel Blaine Stephens, along with queer rights activist Mario Leslie Dpenha.
Homosexuality is recognized in 29 Christian-dominated countries, Buddhist-dominated Taiwan, No Muslim country in the list
Thirty countries in the world have accorded legal recognition to same-sex marriages. They are Argentina, Australia, Austria, Belgium, Brazil, Canada, Colombia, Costa Rica, Denmark, Ecuador, Finland, France, Germany, Iceland, Ireland, Luxembourg, Malta, Mexico, the Netherlands, New Zealand, Norway, Portugal, South Africa, Spain, Sweden, Switzerland, Taiwan, the United Kingdom, the United States of America and Uruguay.
Excepting Taiwan(a Buddhist majority country), all are countries with a predominantly Christian population.
The list does not include any Muslim majority country.
Pope rejects same-sex marriages
This is despite the fact that the Pope has not approved homosexual marriages.
In a statement aired on September 15 this year, Pope Francis said, “I have spoken clearly about this, no?”
“Marriage is a sacrament. Marriage is a sacrament. The Church doesn’t have the power to change sacraments. It’s as our Lord established,” Pope further said.
He also said that homosexual couples could not adopt children.
However, Pope said that if a homosexual couple wanted to live together, the governments must provide them safety about their health and inheritance.
Harms of the same-sex marriage
US-based Christian Medical Dental Association (CMDA), quoting the Gay Lesbian Medical Association (GLMA) website, says that higher rates of HIV/AIDS, substance abuse, depression/anxiety, hepatitis, sexually transmitted illnesses (anal papilloma/HPV, gonorrhea, syphilis, and chlamydia), certain cancers, alcohol abuse, tobacco use, eating disorders were associated with the same-sex sexual practices.
Homosexuals are also reported to have low life expectancy due to various diseases like HIV/AIDS, gonorrhea, etc.
According to the CDMA website, homosexuals were 1.9 times more vulnerable to cancer than heterosexuals.
According to the Netherlands Mental Health Survey and Incidence Study (NEMESIS), “People with same-sex sexual behavior are at greater risk for psychiatric disorders.” The Netherlands is the first country to give legal recognition to homosexual marriages.
A study conducted in New Zealand in 1999 found that “gay, lesbian, and bisexual young people were at increased risk for suicidal behavior and ideation, major depression, generalized anxiety disorder, conduct disorder, tobacco dependence, and multiple disorders compared to the heterosexual subsample.”
According to a 2004 US study, domestic violence is higher among same-sex couples.
The Journal of Consulting and Clinical Psychology in a study in 1994 reported that “37% of lesbians had been physically abused as adults or children, and 32% were either raped or sexually battered.”
(Courtesy: indiatomorrow.net)
