14 Sep 2020
Our culture doesn't recognize same-sex marriage: Centre to Delhi HC
Written bySiddhant PandeyIndia
Same-sex marriages are not a part of our culture, the Centre told the Delhi High Court on Monday while opposing a plea demanding the recognition of same-sex marriage rights under the Hindu Marriage Act 1955.
The plea had argued that not recognizing same-sex marriages legally is discriminatory, pointing out that India's Supreme Court had decriminalized homosexuality in September 2018.
Petition filed by four LGBTQ+ individuals
The Delhi HC was hearing a petition filed by four LGBTQ+ individuals—security and foreign policy commentator Abhijit Iyer Mitra; Tamil Nadu-based intersex activist Gopi Shankar M; transgender activist G Oorvasi; and Giti Thadani, a founder member of the Sakhi collective and journal of contemporary and historical lesbian life in India, The Print reported.
The petition was filed through advocates Raghav Awasthi and Mukesh Sharma.
Hindu Marriage Act 'doesn't distinguish between heterosexual, homosexual marriage'
Notably, the Hindu Marriage Act "doesn't distinguish between heterosexual and homosexual marriage," the plea argued. Section 5 of the Act reads that "a marriage may be solemnized between any two Hindus."
It argued that despite no statutory bar under the Act, same-sex marriages are not being registered across India.
Hence, benefits available to heterosexual married couples are not available to same-sex couples, it stated.
Non-recognition of same-sex marriage violates Right to Equality: Plea
The plea stated, "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."
The plea said not having the option of marriage is "discriminatory and creates a second class of citizens," noting that petitioner Gopi wishes to be married.
Our law, society, values don't recognize same-sex marriage: Centre
Appearing for the Centre, Solicitor General Tushar Mehta contended, "Our law, society, values don't recognize marriage—which is a sacrament—between a same-sex couple."
He said, for instance, Section 498A of the Indian Penal Code, talks about a "husband or relative of husband of a woman subjecting her to cruelty" to illustrate how the law refers to a "husband and a wife" in a marriage.
Court adjourns the matter to October
A bench of Delhi High Court Chief Justice DN Patel and Justice Prateek Jalan was hearing the plea.
Due to the Centre's submissions, the court has asked the petitioners to file affidavits from members of the community who are aggrieved by the refusal of authorities to register same-sex marriages.
The court has adjourned the case to October.