Make Registration Of Same-Sex Marriage Either Religion-Neutral Or Under Secular Law Only: Plea In Delhi High Court

An NGO namely Sewa Nyaya Utthan Foundation has moved the Delhi High Court seeking to intervene in the plea filed for registration of marriages of LGBTQIA couples under the Hindu Marriage Act, 1956.

At he outset, the application filed through Advocate Shashank Shekhar Jha states that approval with regards to same sex marriage under Hindu Marriage Act and not in other Personal Laws existing in India will discriminate people from LGBT community on the basis of religion.

Thus, it is prayed that marriages should either be registered under secular law like Special Marriage Act or must be allowed under all religious laws such as Muslim Marriage Law and Sikhs' Anand Marriage Act.

Further it is highlighted that as per Hinduism, Vivah is not a contract but a religious activity. Thus, it is contended that any attempt to tinker with Hindu Marriage Act in a way that it affects the age-old harmless beliefs of Hindus will be a direct intrusion by secular state into religious rights of Hindus that is guaranteed by the Constitution.

The plea states,

"The instant petition is seeking same sex marriage under Hindu Marriage Act, 1956 is not only against the religious system of Hindu Marriage but is also an act to bring changes abruptly without any reason. This change will impact other aspects like inheritance, adoptance and religious ecosystem of Hindu society that are critically hinged on the religious sanskar of Vivah."

It adds,

"legitimizing such marriages under Hindu Marriage Act, 1956 is against Freedom of Conscience and Free Profession, Practice and Propogation, Religion as guaranteed under Article 25 of Indian Constitution."

The intervenor has stated that it has no objection if such marriages are registered under acts other than Hindu Marriage Act, such as Special Marriage Act and Foreign Marriage Act. "If it must be registered under Hindu Marriage Act, it must happen for all religions," it adds.

The application was mentioned before a bench of Chief Justice DN Patel and Justice Jyoti Singh today. The same is posted for hearing alongwith the main petition on February 3.

The High Court will also decide an application seeking live streaming of proceedings in the case concerning recognition and registration of same-sex marriages in the country.

Earlier, Centre had claimed that marriage is permissible between biological man and biological woman. It argued that there is a misconception of Petitioners regarding the case of Navtej Singh Johar v. Union of India, which decriminalized homo sexual acts between adults in private.

About the plea

The petition filed by Abhijit Iyer Mitra, in which the instant intervention is filed, seeks registration of marriages of LGBTQIA couples under the Hindu Marriage Act. It is argued that the language used in the Hindu Marriage Act is gender-neutral, and it doesn't explicitly prohibit the marriages of same sex couples.

It is argued that in absence of any explicit prohibition, the marriages of homosexual couples should be allowed to be registered under the Hindu Marriage Act, as well as the Foreign Marriage Act.

Other pleas

The High Court is also seized with a batch of similar petitions filed by Dr Kavita Arora, an OCI card holder Joydeep Sengupta and his partner Russell Blaine Stephens, Zainab Patel and Nibedita Dutta.

In her plea, Dr. Arora has sought a direction to be issued to the Marriage Officer, South East Delhi, to solemnize her marriage with her partner under the Special Marriage Act. it is her case that the fundamental right to choose one's own partner for marriage under Article 21 of the Constitution extends to same-sex couples as well.

The plea moved by Joydeep Sengupta and his partner Russell Blaine Stephens prayed for a declaration from the Court that "a spouse of foreign origin of an Indian Citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse." It reasons that since S. 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses, 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.

Zainab Patel has moved the Court for legalization of marriages of Transgender persons. "The Union seeks to create classify men and women into two categories - "biological" and otherwise. Yet for the purposes of marriage, there is no intelligible differentia between the Petitioner and any other woman. The ability to procreate is not a condition of or for marriage under any law. Infertile couples can marry, elderly couples can marry, couples who have decided not to have children can marry," her plea states.

The plea field by Nibedita Dutta and her partner seeks recognition and registration of marriage of lesbian couples.