New Delhi: The Centre on Monday told the Delhi High Court that marriage between same sex couples was “not permissible” as it is not recognised by “our laws, legal system, society and our values”.
The submission was made before a bench of Chief Justice D N Patel and Justice Prateek Jalan by Solicitor General (SG) Tushar Mehta during hearing of a PIL seeking a declaration that same sex marriages be recognised under the Hindu Marriage Act (HMA) and Special Marriage Act.
The court is hearing a PIL filed by four members of the LGBTQ+ (lesbian, gay, bisexual, trans, queer, and others) community — Abhijit Iyer Mitra, a security and foreign policy commentator, Gopi Shankar M, a Tamil Nadu-based intersex activist who contested the 2016 assembly elections, Giti Thadani, founding member of the Sakhi collective journal of contemporary and historical lesbian life in India, and G. Oorvasi, transgender activist.
Mehta opposed the relief sought in the petition saying “our laws, our legal system, our society and our values do not recognise a marriage, which is a sacrament, between same sex couples”.
He said the plea to grant recognition to or permit registration of such marriages was “not permissible” for two reasons — firstly, the petition was asking the court to legislate and secondly, any relief granted “would run contrary to various statutory provisions”.
The petition has contended that despite the Supreme Court decriminalizing consensual homosexual acts, marriages between same sex couples was still not possible.
One of the petitioner, Gopi Shankar M, wishes to marry someone from the LGBT community as per his own choice in India. “Denying the LGBT community the option to marry is absolute discriminatory and creates them a second class of citizens (sic)”, read the petition.
Filed through advocates Raghav Awasthi and Mukesh Sharma, the petition pointed out that the Supreme Court read down Section 377 of the Indian Penal Code in 2018 and decriminalized consensual homosexual acts in the country.
It then asserted that the Hindu Marriage Act “does not distinguish between heterosexual and homosexual marriage”.
This is because Section 5 of the Act lays down the conditions for a Hindu marriage and begins with the words, “a marriage may be solemnized between any two Hindus”.
The petition submitted that despite there being no statutory bar under the 1955 Act against gay marriage, it is not being registered throughout the country.
“As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it stated.
The petition also pointed out that the right to marry is a part of the right to life under Article 21 of the Constitution.
“…The non-recognition of the rights of LGBT couples who wish to get married is a violation of the Right to Equality guaranteed to all persons within the territory of India under Article 14 of the Constitution,” it contended.
Marriage is sacrament
“Marriage is a sacrament and there are other provisions of law that do refer to a husband and a wife. For instance, he cited Section 498A of the Indian Penal Code, which talks about husband or relative of husband of a woman subjecting her to cruelty,” Solicitor General Mehta argued.
“Culture of any country is codified in a statutory law like degrees of prohibited relationship, special or additional rights to ‘wife’, different age limits for ‘husband’ and ‘wife’, use of the terms ‘husband’ and ‘wife’ — which cannot be determined in same-sex marriage,” Mehta submitted.
“Relief sought by the petitioners cannot be granted unless several laws are altered. This is something the courts cannot do.” Mehta added that he will file a note in the court on these provisions.
With the direction to place these factual aspects before the court, the bench listed the matter for further hearing on October 21.