'Our Culture & Law Do Not Recognize The Concept Of Same-Sex Marriages' : SG Tells Delhi HC

Solicitor General Tushar Mehta submitted that the concept of same-sex marriage is not recognized under Indian culture or under Indian law.

"Our culture and law don't recognize the concept of same-sex marriages", the SG said.

"As per law, a marriage is only between a husband and a wife", argued Mehta to urge that the Hindu Marriage Act (the Act) itself did not recognize same-sex marriages.

The SG submitted that the culture of any country is codified in statutory provisions and unless several statutory provisions are altered, which the court cannot do, the relief as prayed for cannot be granted, the SG submitted.

The SG said that the matter did not require the filing of an affidavit as it could be argued on the basis of statutory provisions and will come back after getting instructions from the Centre.

The Bench comprising Chief Justice DN Patel and Justice Prateek Jalan however expressed that such a petition must be viewed with an open mind. Acknowledging that though the position of law might be different, the Bench stated that "changes are happening across the world."

SG Mehta however maintained that the effect of Supreme Court's 2018 judgment in Navtej Singh Johar's case was only to decriminalize consensual homosexual activities, "nothing more, nothing less".

The Court went on to suggest that the petitioners, who are activists and members of the LGBTQ community, could first try and get their marriage registered and if in case they were denied, they could approach the Court with their grievance.

Appearing on behalf of the petitioners, Advocate Raghav Awasthi informed Court that there have been instances of gay couples getting married but being refused registration.

The Court thus asked the petitioners to bring on record all those persons who are aggrieved by the non-registration of same-sex marriages on the next date of hearing and posted the matter to be considered again on October 21.

The Court was hearing a PIL which sought a declaration recognizing the right of same sex couples to get married under the Hindu Marriage Act, 1956.

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, 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.

Despite the Supreme Court reading down section 377 of the Indian Penal Code to decriminalise 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 1956 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi", inform the petitioners.

In this light, it is prayed the Section 5 be given effect, and the Right for homosexual couples to marry under the Act be recognized by the Court.

The denial of the right to marry encroaches upon 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.

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.

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.

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 the Special Marriage Act 1954 to the extent they do not permit the registration of homosexual marriages.