the Government of Uttar Pradesh Last week, he opposed the recognition of same-sex marriage on the grounds that such marriages are against Indian culture and Indian religions and are invalid under Indian laws, which were crafted keeping in mind mind the concept/existence of a man and a woman.
The motion was presented before the bench of Judge Shekhar Kumar Yadav hearing a habeas corpus plea filed by a mother seeking custody of her daughter (23) alleging that she had been unlawfully detained by another woman, Sanjana, 22 years old (opposing party n°4).
The context of the case
Essentially, on the plea of the mother, the Court, on April 6, 2022, issued an order in which the corpus and opposing party no. 4 had to be produced before the Court.
On April 7, 2022, they both appeared in court and declared that they were adults and in love, and that they had contracted a same-sex marriage with mutual consent. In this regard, they also showed a marital contract letter to the court.
In addition, they prayed in court that, since they are adults and have entered into a same-sex marriage, this marriage will be recognized by the court.
It was their specific argument that the Supreme Court decriminalized all consensual sex between adults, including same-sex sex in its decision in the case of Navtej Singh Johar & Ors. v. Union of India th. Secretary Ministry of Law and Justice AIR 2018 SC 4321. They also argued that but Hindu Marriage Act talks about the marriage of two people, same sex marriage has not been opposed by legislation.
Submissions made by the State of UP
The additional government lawyers objected to the girls’ prayer on the grounds that our country operates according to Indian culture, religions and law and that in India marriage is considered a sacred act. samskarawhereas in other countries marriage is a contract.
Referring to the Hindu Marriage Act, the AGAs further argued that it speaks of marriage between a woman and a man and in the absence of either of them, marriage cannot under any circumstances be accepted, as it would go beyond the concept of an Indian family.
Further emphasizing that the Hindu Marriage Act 1955, Special Marriage Act 1954 and even Foreign Marriage Act 1969 also do not allow same-sex marriage, the state of UP argued that even Muslim, Buddhist, Jain, Sikh, etc. have not recognized same-sex marriage either.
The State of UP further argued that according to the Indian Sanatan Vidhi, there are altogether 16 types of rituals, including rituals ranging from pregnancy to funeral rites, and in the 16 rituals, a man and a woman have a definite role to play and in their absence such rituals cannot be performed.
“According to Indian law and culture, a biological husband and a biological wife are considered essential for marriage and only their marriage has been recognized. In their absence, same-sex marriage cannot be recognized because they lack a man and a woman, nor can they produce children. Marriage is considered important in Hindu law, under which men and women live together and move the human chain forward by producing children“, he added.
Considering the same, the Court rejected the Corpus’ request to recognize his same-sex marriage and the habeas corpus exception was therefore rejected.
Case Title – Kumari Neha Chandra Vs. UP State and 3 others
Case quote: 2022 LiveLaw (All) 174
Click here to read/download the order