Centre Opposes Same Sex Marriage In SC Court

Two years after decriminalizing Section 377 of IPC by the Apex Court, four LGBTQ community members sought the Delhi High Court to legalize “same-sex” marriage as they were unable to get their marriage legally registered under the Hindu Marriage Act, 1956. The petitioners – Abhijit Iyer Mitra, Gita Thadani, Gopi Shankar M and G Oorvasi of the LGBTQ Community, contended before the bench of Chief Justice D N Patel and Justice Prateek Jalan that Section 5 of 1956 Act provides that “a marriage may be solemnized between any two Hindus” and hence there could be no bar on the marriage of same sex couples of the LGBTQ Community. 

They collectively sought a declaration that since Section 5 does not distinguish between homosexual or heterosexual couples, the right of same-sex couples to marry shall be recognized under the Act.

The centre represented by Solicitor General Tushar Mehta argued off-handedly to oppose the same-sex marriage and said that the statutory provisions and the country’s social norms and cultural ethos do not permit same sex marriage. The culture of our country has been codified into statutory provisions that does not recognize homosexual marriage. The unprecedented notions cannot be granted unless the provisions are altered which per se the Court cannot do, he said.  

Several civil and criminal laws recognize marriage between “biological men and women only and not between homosexual couples of LGBTQ community.” The provisions of the Hindu Marriage Act recognize marriage between men and women. He added, in domestic violence cases, who will be treated as women to her rights enforced under the Protection of Women from Domestic Violence Act, 2005, furthermore, how the case will be resolved when the women will die within 7 year of marriage, to fasten the statutory provisions of IPC. He drew the court’s discretions towards to the problems of enforcing same-sex marriage without any prior alteration in the existing laws.  

The Court declined the sought same-sex marriage and suggested the petitioners to first try to get their marriage registered. It asked the community to bring the records of all those persons who are aggrieved by the non-registration of their marriage before the Court, when the community quoted a problem of constant denial of registration of same-sex marriage.

The PIL filed by the activist petitioners stated that their Right to Marry under Article 21 of the Constitution has been violated by not recognizing gay marriages even when the Supreme Court has upheld their sexuality under Section 377. Hence, Right to Marry under Right to Life shall be extended to the same-sex couples too. Discriminating one community of enjoying the rights that are freely available to the heterosexuals is also violative of the Right to Equality under Article 14.

Furthermore, it contended that legalizing marriage will not disturb the institution of marriage, but by not allowing marriage of homosexual couples will enhance the cases of mental disorders among the LGBTQ community. The Right to Marry is a universal right as upheld under the Human Rights Charter. Everyone has a right to marry and start a family irrespective of their sexual orientation and gender identity. The matter of same-sex marriage has been slated for October 10, 2020.

The same matter of recognition of same-sex marriage under the Special Marriage Act 1954 is pending before the Kerala High Court, filed by the first married gay couple from Kerala.

By:

Kumari Simran

Student Reporter Committee, INBA