Concept of same-sex marriage attacks family system, SC told

NEW DELHI: Jamiat Ulama-I-Hind has moved an intervening application in Supreme Court in the matter pertaining to legal recognition of same-sex marriage, saying that as per the legal regime in the country, marriage is only between a biological man and a biological woman.

"This concept of same-sex marriage goes to attack the family system rather than making a family through this process," the application filed by Jamiat Ulama-I-Hind stated.

It has been submitted that invoking the principle of constitutional morality to justify same-sex marriage based on the fact that in some parts of the world, this practice is legal, can be very harmful to the social order of the other part.

Jamiat Ulama-I-Hind submitted that it firmly believes that the ambit of constitutional morality cannot and should not expand itself to the extent to justify the petition.

It also apprised the SC that among Muslims, marriage is a sacred contract leading to the union of a biological man and a biological woman.

In Muslim society, a marriage proposal by a biological man and its acceptance by a biological woman (or vice versa) are necessary for a valid (Sahih) marriage.

Jamiat Ulama-I-Hind has urged the top court to allow it to intervene in the petition relating to legal recognition of same-sex marriage, as it submitted that the legislative policy of a "marriage" in the Indian legal system, whether penal, constitutional, or personal, has been between a biological man and a biological woman.

The religious body submitted that there are categorical and definitive binaries with the usage of terms such as 'husband', 'wife', 'mother', 'father', etc.

Any deviation or dilution of such definitions is a matter of legislative policy based on social realities, acceptance and on extensive socio-legal research. Jamiat Ulama-I-Hind said that without prejudice to the submissions made in the present petition and without justifying the concept of same-sex marriage in the other cited countries, it wants to point out that those countries have reached a certain threshold of social order in terms of education/literacy and societal acceptance.

It added that the logic that other countries have legalized the inclusion of same-sex relationships in the concept of marriage cannot be introduced in India.

It is also pertinent to mention that most Eastern countries do not recognize same-sex marriages, the organisation said. Jamiat Ulama-I-Hind, in the application moved by MR Shamshad, said that every organized religion is bound to have certain principles attached.

"When a person enters into a religion or declares herself to be a follower of a religion, that person is expected to have a belief in the foundational norms of such a religion. A person who fails to follow such norms is considered a sinner in the religious paradigm. Any person who questions the well-established norms of religion or demands the creation of a non-existing space within the religious norms and its teachings is in fact seeking to amend the religious norms. There cannot be an imposition of a radical non-religious worldview in established, inseparable and core principles of religions," Jamiat Ulama-I-Hind said.

The centre, in its affidavit filed earlier, had opposed the plea seeking legal recognition of same-sex marriage, saying that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit and they are clearly distinct classes which cannot be treated identically.

Same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically, the government said as its stand against the petition seeking legal recognition of LGBTQ marriage.

It is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos, the centre said in its affidavit and added that western decisions sans any basis in Indian constitutional law jurisprudence, cannot be imported in this context.

In the affidavit, the centre apprised the apex court that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit concept of a husband, a wife and children.

On March 13, the Supreme Court referred the matter relating to the legal recognition of same-sex marriage to a five-judge Constitutional Bench. Various petitions are being dealt with by Supreme Court seeking legal recognition of same-sex marriage under the Foreign Marriage Act, Special Marriage Act and other laws.

One of the petitions earlier raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice.

According to the earlier petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that "the exercise of which ought to be insulated from the disdain of legislative and popular majorities."

The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so.