After almost two years of decriminalization of Section 377 in India, the LGBTQ community is constantly fighting for equality. On Monday, Delhi High Court has taken the PIL seeking recognition of same-sex marriage for hearing which is opposed by Centre submitting that Indian culture and law don’t permit the registration of same-sex marriage.
A bench comprising of Chief Justice DN Patel and Justice Prateek Jalan heard the matter and told the Centre that the petition must be examined with an open mind. The court also added, “Acknowledging that though the position of law might be different, changes are happening around the world.”
Solicitor General of India, Tushar Mehta appearing for Union of India submitted that the concept of same-sex marriage is neither recognized in Indian culture and nor under Indian law.
SG Mehta argued that Hindu Marriage Act itself didn’t recognize same-sex marriage and as per law, a marriage is only between a husband and a wife. “Our law, society, values don’t recognise marriage – which is a sacrament – between a same-sex couple,” added Tushar Mehta.
Tushar Mehta also submitted, “The judgment of the constitutional bench of the Supreme Court merely decriminalizes homosexuality or lesbians. Nothing more, nothing less.” He also stated that the culture of any country is codified in statutory provisions like degree of prohibited relationship, special or additional rights to “wife” different age limits for “husband” and “wife”, use of the term “husband” or “wife” (which can not be determined in same-sex marriage), special protection to wife in criminal law such as Section 498-A of IPC.
The bench has asked the petitioners, including activists and the LGBTQ community members, to first try to register such marriages and if they will be denied for the same, then they could approach the court.
The court has also asked the advocate Raghav Awasthi representing the petitioners to bring on record all those aggrieved persons who were denied the registration of marriage and had posted the matter for October 21.
A PIL has been moved by Tamil Nadu intersex activist Gopi Shankar M, journalist and defence analyst Abhijit Iyer Mitra, transgender activist G Oorvasi, and Giti Thadani, founder member of lesbian archive Sakhi seeking recognition of same-sex marriage in India.
The petition stated, “Despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act,1954 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi. The denial of the right to get married violates the fundamental rights of the members of the LGBT community.”
The plea mentioned that right to marry is a part of the Right to Life under Article 21 of the Indian constitution and therefore denying the registration of same-sex marriage is the violation of the same.
“Seeking marriage for same-sex couples was neither radical nor complicated. Discrimination against one community by denying them right enjoyed by another is also in violation of Rights of Equality,” the plea said.
The plea also mentioned that the Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. It also stated that the Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and identity.