India does not recognize same-sex marriage or civil unions. In fact, it does not possess a unified marriage law. Every Indian citizen has the right to choose which law will apply to them based on their community or religion. Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.
The PIL, filed on September 8, 2020 in Delhi High Court, by four members of the LGBTI (lesbian, gay, bisexual, transgender, intersex) :-
- 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.
- G. Oorvasi, transgender activist.
PIL filed through Raghav Awasthi and Mukesh Sharma, petition 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.
The petition said that Gopi Shankar M “wishes to marry someone from the LGBT community as per his own choice in India.” Denying the LGBT community the option to marry “is absolute discriminatory and creates them a second class of citizens (sic)”, it added. It then asserted that the Hindu Marriage act “does not distinguish between homosexual and heterosexual marriage”. This is because Section 5 of the Act lays down the conditions for a Hindu marriage and begins with the words, “a marriage may be solemnized between any two Hindus”. The petition submitted that despite there being no statutory bar under the 1995 Act against gay marriage, it is not being registered throughout the country. “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 pointed out that the right to marry is a part of the right to life under 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 contended.
Tushar Mehta, the Solicitor General of India, one of central government’s top lawyers, seeks to challenge the petitioners.
Mr. Mehta argued that marriage is a sacrament, adding that there are other provisions of law that do refer to a “husband and wife”. He cited the Section 498A of the Indian Penal Code, which talks about “husband or relative of husband of a woman subjecting her to cruelty”. Mr. 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 be determined in the same sex marriage.” He said the relief sought by the petitioners cannot be granted unless several laws are altered. This, he said, is something the courts cannot do. Mehta added that he will file a note in the court on these provisions.
“Same sex marriages are neither a part of “our culture” nor a part of the law, Tushar Mehta told the Delhi High Court Monday (14 September 2020), opposing a petition demanding marriage rights for the gay community under the Hindu Marriage Act 1955.
The submission was made during a hearing before a bench comprising Delhi High Court, Chief Justice D.N. Patel and Justice Prateek Jalan.
After the submission of Tushar Mehta, bench has asked the petitioners to file affidavits from the members of the community who are aggrieved by the refusal of authorities to register same sex marriage.
The petition will next be heard in October.