The Centre on Monday opposed a plea seeking legalisation of marriage for gay couples under the 1955 Hindu Marriage Act even as the Delhi high court observed that changes were taking place around the world and it needed to be examined whether it was applicable to India.
The petition was filed last week by four members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community who invoked Article 14 (right to equality), Article 21 (right to life) and Article 25 (freedom of religion) to argue that right to marriage for same-sex couples was a part of that fundamental right.
“These marriages run contrary to the provisions which are already in place in our society. Our values do not recognise a marriage, which is sacrosanct, between two people of same sex marriage,” Solicitor General Tushar Mehta, appearing for the Centre, told a bench comprising Chief Justice of the Delhi high court DN Patel and Justice Prateek Jalan.
Mehta clarified that he was expressing his personal opinion.
The Public Interest Litigation (PIL) filed on September 8 claimed that Section 5 of the Hindu Marriage Act did not specify that the marriage must be between a Hindu man and a Hindu woman, but instead refers to marriage between “two Hindus”.
“It does not concur with constitutional values,” Mehta said.
To this, Justice Jalan said that changes have taken place across the world and when two men marry in a foreign country, neither is considered a wife. He further said that all aspects of the plea would need to be examined.
The Supreme Court had decriminalised homosexuality, but not provided for anything further, Mehta told the court, referring to the September 6, 2018 judgment of a five-judge Constitution bench headed by the then chief justice of India Dipak Mishra, which read down Section 377 of the Indian Penal Code.
Mehta later clarified to the Hindustan Times that while he was yet to receive instructions from the Centre, he had pointed out to the court the legal provisions to show that the law did not permit same sex marriages. “I said 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) etc, special protection to “wife” in criminal law such as section 498-A of the IPC etc. Unless several statutory provisions are altered (which the court cannot do) the relief as prayed for cannot be granted,” Mehta said.
Appearing for the petitioners, Raghav Awasthi told the court that the fundamental rights of gay couples were getting hampered, even as there was no legal prohibition on such marriages.
There are many benefits extended under the Hindu Marriage Act which cannot be availed by his petitioners, he said. “Today the matter was listed before the honourable Delhi high court. The learned chief justice has asked us to file details of people who have tried to get married and failed to do so after the passing of the Navtej Johar judgment. We shall be doing the same,” Awasthi told HT.
The petition has been filed by intersex rights activist Gopi Shankar, founder of lesbian collective Sakhi Giti Thadani, transgender rights activist G Oorvasi and writer Abhijit Iyer Mitra.
The bench stated that the aggrieved party could have moved court in their personal capacity instead of a filing a PIL, and asked the counsel to bring on record all persons whose marriages were not registered on account of being a same-sex marriage. The matter will be taken up for hearing on October 21.
The petition pointed out that in 2018, the Supreme Court read down Section 377 of the Indian Penal Code, which criminalised 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.
“Change in marriage laws has to be secular and broad-based. To contend that the Hindu Marriage Act should recognise same sex marriages because Hinduism does, suffers from two errors. The Hindu Marriage Act is decidedly anti-scriptural. It was brought in 1955 to amend Hindu law and undo the regressive elements of the scriptures which were incorporated in the law. The Act was an attempt at reformation, rather than incorporating venerated practices of the scriptures. Secondly, it matters little whether the Hindu scriptures recognise same sex marriage or not. There will be a lot of debate either was, but that’s beside the point. Marriage for members of the LGBTQI community has to be allowed because the Constitution demands it,” said Supreme Court advocate Saurabh Kirpal who appeared for the petitioners in the Navtej Johar case, which led to decriminalisation of homosexuality in 2018.