Union government on Monday during the hearing of pleas seeking recognition and registration of same-sex marriages under the law contended that a 'spouse' means either husband or wife and 'marriage' is a term associated with heterosexual couples.
Opposing the concept of same-sex marriage before Delhi High court, Solicitor General Tushar Mehta appearing for the Union government submitted that "The law as it stands...personal laws are settled and marriage which is contemplated to be is between a biological man and biological woman"
He also added that there is some misconception for petitioners regarding the Supreme Court's verdict decriminalising consensual homosexual acts.
"The issue here is whether marriage is permissible between homosexual couples. Your lordships have to see that. There is some misconception regarding Navtej Singh Johar case. It merely decriminalises consensual homosexual acts. It does not talk about marriage, Mehta contended
The Court Monday listed for final hearing separate pleas, including by two same-sex couples, seeking a declaration recognising same-sex marriages under the special, Hindu and foreign marriage law.
The bench of Chief Justice DN Patel and Justice Jyoti Singh which heard a batch of pleas granted time to the parties for filing replies and rejoinders in the matter and listed it for final hearing on November 30.
In the first petition, Abhijit Iyer Mitra and three others have contended that same-sex marriages are not possible despite the Supreme Court's decriminalising consensual homosexual acts and sought a declaration to recognise them under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).
The two other pleas are -- one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent that it does not provide for same-sex marriages, and the other filed by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).
Another petition seeks to allow a foreign-origin spouse of an Overseas Citizen of India cardholder to apply for OCI registration regardless of gender or sexual orientation.
The petitioners are a married same-sex couple -- Joydeep Sengupta, an OCI, and Russell Blaine Stephens, a US citizen -- and Mario Dpenha, an Indian citizen and a queer rights academic and activist pursuing a PhD at Rutgers University, USA.
During the hearing, advocate Karuna Nandy, appearing for the couple, said they got married in New York and the law applicable in their case are the Citizenship Act, the FMA and the SMA.
She further submitted that the Citizenship Act is silent on the gender and sexuality of the spouse and it provides that a person married to an overseas citizen of India whose marriage is registered and subsisting for two years should be declared eligible to apply as a spouse for an OCI card.
Nandy pointed out that the government has not yet filed a reply to her petition
Union government while saying that there is no need to file a specific reply regarding the Citizenship Act, opposed same-sex marriage on the ground that marriage in India is not just a union of two individuals but an institution between biological man and woman.
It also said that judicial interference will cause "complete havoc with the delicate balance of personal laws".
Any interpretation other than treating a husband as a biological man and a wife as a biological woman will make all statutory provisions unworkable, it said, adding that marriage is essentially a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws