It’s been two years since the decriminalization of Section 377 in our nation. Queer communities all over the country rejoiced at this and the society started to change their opinion towards them as well (a small portion of it at least has changed). Gay men and drag queens are not thrown into the jail for wearing makeup anymore. LGBTQ people can be their true self now, without the law making it a punishable offence. This is definitely a huge step towards the right direction.
However, queer couples who decide to tie the knot and stay with each other forever are not accepted by the law. Married queer couples are not given the same rights that straight couples get in this country. For instance adoption rights, joint investments in bank or health benefits. LGBTQ couples are not recognised by the Indian law.
Recently, four community members requested the Delhi high court to legalise same-sex weddings under the Hindu Marriage Act. But, the Centre opposed this request by stating that same-sex marriages fell under many criminal laws. And many civil laws as well, since they recognise only a union between “biological man and woman”.
“Not recognised by our laws, legal system, society and our values”:
Solicitor General Tushar Mehta made a submission as the Delhi High Court heard a petition; on legalizing same-sex marriages below the Hindu Marriage Act (HMA) and Special Marriage Act.
Marriages between same-sex couples is “not recognised by our laws, legal system, society and our values,” said this government’s top lawyer to the Delhi High Court; directly opposing the petition to legalise gay marriages.
Mr Mehta said: “Our laws, our legal system, our society and our values do not recognise marriage; which is a sacrament, between same-sex couples”.
He also said the petition for asking gay marriages to be legalized is “not permissible” for two main reasons. “Firstly, the petition is asking the court to legislate. Secondly, any relief granted will run contrary to various statutory provisions. Unless court does violence to various laws, this cannot be done,” told the Solicitor General.
Mr Mehta also stated that under the Hindu Marriage Act, several provisions regulating marriages or prohibited relationships speak of a husband and a wife. “Who would be assigned these roles where a same-sex couple was concerned,” he questioned.
Delhi HC Asked The People Who Made This Request To Directly Approach The Court:
Delhi High Court Chief Justice DN Patel and Justice Prateek Jalan observed and noted that things were changing the world over. However it does not necessarily mean that it might be applicable to India as well.
The court questioned the need for a petition. They said that people who claimed to be affected because of it are well-educated; and can approach the court on their own.
“Why should we entertain the PIL,” the judges said.
The counsel for the petitioner said the affected people were not willing to coming forward since they feared reprisals; and preferred a Public Interest Litigation instead.
The court asked the lawyer who is appearing for the petitioner, Abhijit Iyer Mitra, to give the full details of these people; who were not allowed or permitted to register their same-sex marriage under the law.
Also the judges asked the petitioners, who include gay rights activists as well to present the facts about their efforts to register such marriages. And said they would hear about the case again next month, that is October 21st.
‘One of the petitioners wants to get married’:
The petition has argued that irrespective of the Supreme Court decriminalizing consensual homosexual relationships, gay marriages are still are very much NOT possible.
The petition noted that Gopi Shankar M “wishes to marry someone from the LGBT community as per his own choice in India”. Flat out denying the LGBTQIA+ community the option to marry “is absolute discriminatory and creates them a second class of citizens (sic)”, it added.
It also pointed out that the Hindu Marriage Act “does not distinguish between heterosexual and homosexual marriage”.
This is because of the Section 5 of this Marriage Act lays down the conditions for a Hindu marriage; and starts with the words, “a marriage may be solemnized between any two Hindus”.
The petition submitted that not only there is no statutory bar under the 1955 Act against gay marriage; it is also not registered throughout the nation.
“As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it stated.
The petition also points out that this right to marry comes under the right to life in Article 21 of the Constitution.
“…The 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,” it said.