'Not Allowing Homosexual Marriage A Violation Of Right To Life': PIL in Delhi HC Seeks Recognition Of Same-Sex Marriage

The petition filed on behalf of activists and members of the LGBTQ community avers that the Hindu Marriage Act (the Act) allows a marriage to take place between 'any two Hindus', without discriminating between homosexuals and heterosexuals.

Abhijit Iyer Mitra, a member of LGBT community and a commentator on security and foreign policy, Gopi Shankar M, a Tamil Nadu-based intersex activist who contested the 2016 assembly elections, Giti Thandani, founder member of Sakhi Collective Journal of contemporary and historical lesbian life in India and G. Oorvasi, a transgender activist, are the petitioners. 

Nowhere in Section 5 of the Act is it mentioned that the 'two Hindus' getting married must be a Hindu Man and a Hindu Woman, further contends the plea.

"Section 5 of the Act clearly lays down that marriage can be performed between 'any two Hindus' under the Act", the plea states. 

Despite the Supreme Court reading down section 377 of the Indian Penal Code to decriminalize consensual homosexual acts in India two years ago, it is not possible for gay couples to get married, states the PIL.

"…despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi", argue the petitioners.

In this light, the petitioners pray for a declaration that since Section 5 of the Hindu Marriage Act of 1955 does not distinguish between Homosexual and Hetrosexual couples, the right of same sex couples to marry should be recognized under the Act.

The denial of the right to marry encroaches upon the fundamental rights of LGBT people enshrined in the Constitution, asserts the petition filed by Advocates Mukesh Sharma and Raghav Awasthi.

"...the non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon'ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign State is signatory to." -reads the plea.

It is pointed out that the Supreme Court has recognized right to choose sexual identity as a fundamental right forming part of right to privacy and individual autonomy under Article 21 as per its decisions in the 2014 NALSA case, and the 2018 Navtej Singh Johar case which decriminalized homosexuality.

Invoking Article 21 of the Constitution, it is stated that the Right to Marry is an admitted aspect of the Right to life, and seeking that Right to be extended to couples of the same sex is neither radical nor complicated.

Discriminating against one community in denying them enjoyment of the same right is also violative of the Right to Equality, adds the petition. The benefits which are otherwise available to heterosexual couples is not available to the LGBT community.

In seeking enforcement of equal rights, the petitioners aver that their prayer only "requires enforcement of the universally applicable guarantee of non-discrimination in the enjoyment of all rights. The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India."

The contention rests on two universally accepted, fundamental principles of Equality and Non-Discrimination. International Human Rights law envisages the birth rights of all human beings and admits no exception urges the petitioner in conclusion.

"...not allowing the LGBT community to marry as per their own choice in India is like saying that ((There is no one for you to marry ,or at least no way for you to marry a person you love" and forcing them to live in a marriageless world (at least for them), wherein the members of LGBT community are forced to live life being a bachelor only "

It is stated that legalizing homosexual marriages will not affect the institution of marriage, and not allowing LGBT community of marriage increases rates of psychological disorders.

"That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity," the plea said. 

A similar petition seeking the recognition of homosexual marriages under the Special Marriage Act is pending in the High Court of Kerala. That was a petition filed by Nikesh and Sonu, the first 'married' gay couple from Kerala, challenging the provisions of Special Marriage Act 1954 to the extent they do not permit the registration of homosexual marriages.