PIL Seeks Legalising Gay Marriage But Govt Says Society & Values Don¡¯t Recognise Same-Sex Union

After the historic legalisation of homosexuality in India in 2018, voices are growing to legalise same-sex marriage as well in the country.

A PIL filed in the Delhi high court seeks recognition of same-sex marriage under the Hindu Marriage Act years after the Supreme Court's landmark judgement decriminalised homosexuality in the country.

The PIL urged the court to issue a declaration to the effect that since Section 5 of the Hindu Marriage Act of 1956 mentions that "marriage can be performed between 'any two Hindus'", and therefore does not distinguish based on gender or sex, the right of same-sex couple to get married must be recognised.

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"Despite the fact act that there is absolutely no statutory bar under the Hindu Marriage Act of 1965 and the Special Marriage Act 1954 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi," the plea read, as reported by Live Law.

However, the Centre today opposed the plea. Solicitor General of India Tushar Mehta argued that the society does not recognise marriage between couple of the same sex.

¡°Our law, society, values don¡¯t recognise marriage ¨C which is a sacrament ¨C between a same-sex couple,¡± Mehta submitted in the Delhi High Court, adding that one has to a man and a woman for a marriage to not fall within degrees of the prohibited relationship under the Hindu Marriage Act.

Court: That might be the position of law, but we have to look at this petition from an open mind

'Changes are happening across the world', court says#LGBTQ

¡ª Live Law (@LiveLawIndia) September 14, 2020

The Court however observed that such a petition must be viewed with an open mind. Acknowledging that though the position of law might be different, the Bench stated that "changes are happening across the world."

The PIL has been filed by advocates Raghav Awasthi and Mukesh Sharma on behalf of activists and members of the LGBTQ community including Abhijit Iyer Mitra, Gopi Shankar M, Giti Thandani and G Oorvasi.

"That Right to Marry is also stated under the Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity," the plea said.

The plea said many "benefits that would otherwise be available to heterosexual married couples that are not available to them." It added that the prohibition of marriage of LGBT people on the basis of sexual orientation is violative of their Right to Equality.

The case has now been adjourned to October.