The Delhi HC is having a hearing about the PIL that seeks marriage rights for the gay community under the Hindu Marriage Act 1955.
Solicitor General Tushar Mehta told the Delhi High Court Monday, opposing a petition that demanded marriage rights for the Gay Community under the Hindu Marriage Act 1955.
He said that Same-sex marriages are neither a part of “our culture” nor a part of the law.
The submission was made during a hearing before a bench that included Delhi High Court Chief Justice D.N. Patel and Justice Prateek Jalan.
The PIL has been filed by four members of the LGBTQ+ (lesbian, gay, bisexual, trans, queer, and others) community and the respective names are –
Abhijit Iyer Mitra, a security and foreign policy commentator, Gopi Shankar M, a Tamil Nadu-based intersex activist who contested the 2016 assembly elections, Giti Thadani, founding member of the Sakhi collective journal of contemporary and historical lesbian life in India, and G. Oorvasi, a transgender activist.
One of the Top Central Government’s Lawyers; Mr. Mehta contention that the Hindu Marriage Act doesn’t accept the difference moreover it doesn’t distinguish between heterosexual and homosexual marriage since it doesn’t describe marriage as a union between man and woman, but only “two Hindus”.
He also said that he hasn’t received any instructions but merely tried to point out legal provisions to show that the law does not permit same-sex marriages.
Concerning his submission, the bench 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 petition is shifted for a new date and will be heard again in October.
The petition said that,
One of the petitioners named Gopi Shankar M wants to get married to someone from the LGBTQ community as per his choice in India.
Denying the LGBT community the option to marry is absolutely discriminatory and creates them a second class of citizens is what it added too.
This petition is filed through advocates Raghav Awasthi and Mukesh Sharma and it pointed out that the Supreme Court read down Section 377 of the Indian Penal Code in 2018 and decriminalized consensual homosexual acts in the country.
This petition submitted that despite there being no statutory bar under the 1955 Act against gay marriage, it is unfortunately not being registered throughout the country.
The petition also pointed out that the right to marry is a part of the right to life under Article 21 of the Constitution.
But on Mehta’s Part, he argued that marriage is a “sacrament”, adding that there are other provisions of law that do refer to a “husband and a wife”. For example,
he cited Section 498A of the Indian Penal Code, which talks about “husband or relative of husband of a woman subjecting her to cruelty”.
Mehta submitted that the “culture of any country is codified in a statutory law like degrees of prohibited relationship, special or additional rights to ‘wife’, different age limits for ‘husband’ and ‘wife’, use of the terms ‘husband’ and ‘wife’ — which cannot be determined in same-sex marriage”.
He said that it’s not possible for the petitioners to seek relief unless and until the laws a completely altered.
In the end,
He concluded by saying that such changes are something the courts cannot do. Mehta added that he will file a note in the court on these provisions soon.
