The Delhi high court is likely to hear on Friday a public interest litigation (PIL) that seeks a direction that homosexual couples have the right to get married under the 1955 Hindu Marriage Act, arguing that barring such unions was a violation of their constitutional rights.
The PIL, filed on September 8 by four members of the LGBTI (lesbian, gay, bisexual, transgender, intersex) community and listed before a bench of chief justice of the Delhi HC DN Patel and justice Prateek Jalan, said that nothing in the Hindu Marriage Act mandated that a marriage take place only between a Hindu man and a Hindu woman.
The petition pointed out that in 2018, the Supreme Court read down Section 377 of the Indian Penal Code, which criminalized homosexuality.
“The non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon’ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign state is signatory to,” the petition stated.
This is the second petition to be filed on the issue of same-sex marriage rights. In January, a couple in Kerala – Nikesh Pushkaran and Sonu MS – filed a petition in the Kerala high court challenging the Special Marriage Act.
The Delhi HC petition was filed by four people – Abhijit Iyer Mitra, Gopi Shankar, Giti Thadani and G Oorvasi.
“In the 21st century, there is no reason that same-sex couples should not enjoy the same rights as others,” said Raghav Awasthi, advocate for the petitioners.
“Equality is important. We have people from the diverse LGBTI communities who are refused by registrars to accept or register their marriage ceremonies. I want to marry my partner, too, and register our relationship,” said Gopi Shankar, one of the petitioners.
Shankar pointed to a 2019 Madras high court judgment that upheld the marriage between a man and a transwoman, saying that the word ‘bride’ in the Hindu Marriage Act also included a transwoman.
“The text of the law does not, on a plain reading, exclude same-sex marriages. However, in practice the law has been understood to exclude them. The court, however, should recognise same-sex marriages not merely as a legislative lapse, but as a positive fact,” said Saurabh Kirpal, a Supreme Court advocate who appeared for the petitioners in the Navtej Johar case, which led to decriminalisation of homosexuality in 2018.