India Staff Correspondent Sambhav Sharma, a final year law student at Amity Law School, reports on the Centre’s striking contention in the Delhi High Court Monday that Indian law still does not recognize same-sex marriages in India. He files this for JURIST from New Delhi.

The Union Government of India on Monday submitted in the Delhi High Court that Indian laws do not recognize same-sex marriages in India. The Delhi High Court in Abhijeet Iyer Mitra v. Union of India was hearing multiple connected petitions filed for grant of an Overseas Citizen of India (OCI) Card to the spouse of the petitioner, neither of whom identified as heterosexual.

Karuna Nundy, Senior Lawyer representing one of the Petitioners, said that the pair got married in New York, and the statutes that applied in their instance were the Citizenship Act of 1955, the Foreign Marriage Act of 1969, and the Special Marriage Act of 1954, none of which mandates a specific gender for their application. She further submitted that the provisions of the Citizenship Act, 1955, under section 7A(1)(d) (the provision governing the registration of OCI cardholder) do not discriminate between heterosexuals and homosexuals, and instead uses the term ‘persons’, thus being ‘gender neutral’.

In response, Tushar Mehta, the Solicitor General of India, one of the foremost legal representatives of the Central Government, commented that the terms in the enactments have specific connotations. As per the stand of the Central Government through Solicitor General Tushar Mehta, ‘spouse’ mandatorily means husband and wife (heterosexual couple) and ‘marriage’ implies a union only between such heterosexual couples. To add insult to injury, Tushar Mehta submitted that marriage is only permissible between a biological man and a biological woman as per the law in India.

In order to understand the context and my evident agony, we must revisit the 2018 landmark judgment in Navtej Singh Johar v. Union of India, the decision of the Supreme Court that effectively decriminalized homosexuality in India. By way of the decision, the apex court struck down section 377 of the Indian Penal Code, 1860 (IPC), to the extent it criminalized consensual sexual conduct between adults of the same sex. While declaring the provision unconstitutional, the Court expressly held:

“Section 377 affects the private sphere of the lives of LGBT persons. It takes away the decisional autonomy… prohibits LGBT persons from expressing their sexual orientation and engaging in sexual conduct in private, a decision which inheres in the most intimate spaces of one’s existence.”

As an ordinary citizen who witnessed the victory of the LGBTQ+ community through this decision which gave them rights under Indian law, one assumes that same-sex couples were now legally recognized in India. While that is partially true, the Court did not expressly legalize same-sex ‘marriage’ in India, but only the sexual conduct of same-sex couples in ‘private’. This is precisely what the Central Government is now using as ammunition.

In earlier proceedings of the Delhi High Court in October 2020, the Central Government through Tushar Mehta firmly stated that decriminalization of Section 377 of the IPC does not automatically translate into the fundamental right to marry for same-sex couples. Reiterating its stance, the Solicitor General on Monday submitted that the 2018 decision in Navtej Singh Johar v. Union of India does not talk about same-sex marriage, but only declares that private acts of same-sex couples would no longer be punishable under the penal laws of India. Refuting the government’s submissions, Saurabh Kirpal, Senior Advocate appearing for one of the Petitioners submitted that while the decision did not expressly allow same-sex marriages, the inevitable conclusion favours such an interpretation.

My primary concern with such a conservative and narrow-minded approach of the Central Government is its lack of logic. It almost seems that the government would rather focus on ‘protecting’ the purported customs and traditions of India than provide basic matrimonial rights to its citizens. The Supreme Court at various instances has duly recognized the vitality of a person’s right to get married to a partner of their own choosing. One such case is Shafin Jahan v. Asokan K.M. (2018), wherein the apex court observed:

 “The Constitution recognises the liberty and autonomy which inheres in each individual. This includes the ability to take decisions on aspects which define one’s personhood and identity. The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.”

A bare perusal of the court’s observation leads to an understanding that a person has the legal and exclusive right to marry a partner of their choice. Why then would the Central Government now stand in the way of the judiciary and the interests of its citizens? The answer given by the government is quite feeble. The government in the past has submitted in court that “living together as partners and having sexual relationship by same sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two”.

It is evident that the central government would rather violate valid matrimonial rights of individuals duly recognized by the apex court, than bite the bullet and finally allow people to practice their freedom of choice and fundamental right of privacy. The petitions have now been listed together for final hearing on November 30 before the Delhi High Court. While the central government has gone the whole nine yards to ensure that same-sex couples do not enjoy the same rights as heterosexual couples, the court might just hit the nail on the head and come to the aid of those being deprived of their basic rights.

In my view, it is necessary to broaden the ambit of ‘family’ as is understood in Indian law. Gone are the days when the gender of an individual would govern their entire life, and their sex would dictate the roles they played. This would entail questioning and altering the sexist and often discriminatory gender politics of traditional heteronormative relationships, as well as calling out social and political institutions that hinder the integration of the LGBTQ+ community in the society. The complete recognition of the rights of the LGBTQ+ community requires active steps by the government that formally recognize matrimonial relationships as an exclusive domain of the couple, at par with heterosexual marital relationships.