Delhi HC asks Centre’s repsonse on plea to recognise same sex marriages under law

New Delhi: The Delhi High Court on Thursday asked the Centre to respond to a PIL seeking a declaration recognising same sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).

Issuing notice to the Centre, a bench of Justices Rajiv Sahai Endlaw and Asha Menon asked it to file a counter affidavit within four weeks.

It also asked the Centre to respond to the points raised by the petitioners in an additional affidavit.

Petitioner Abhijit Iyer Mitra and three others have contended in the petition that marriages between same sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts.

The bench tagged this petition with two other pleas — one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same sex marriages, and the other by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).

All three petitions are now listed together for hearing on January 8, 2021.

The high court had earlier sought responses from the Centre and the Delhi government on the plea filed by the two women and also asked the central government and the Consulate General of India in New York to respond to the petition by the two men.

The Centre was represented by Additional Solicitor General Chetan Sharma.

The petition filed by equal rights activists Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi contended that homosexual sex has been decriminalised by the apex court but same sex marriages are still not being allowed under the provisions of the HMA.

“This is despite the fact that the said Act does not distinguish between heterosexual and homosexual marriage if one were to go by how it has been worded. It very clearly states that marriage can indeed be solemnised between ‘any two Hindus’.

“In this view of the matter, it can be stated that it is against the constitutional mandate of non-arbitrariness if the said right is not extended to homosexual apart from heterosexual couples,” the petition, filed through Raghav Awasthi and Mukesh Sharma, said.

The denial of this right to homosexual couples is also against the mandate of various international conventions that India is signatory to, the plea said.

It said the petition has been filed for the benefit of homosexual and transgender persons who constitute between five and 10 percent of the country’s population.

The Centre had earlier told the high court that marriage between same sex couples was “not permissible” as it was not recognised by “our laws, legal system, society and our values”.

The petition said the case for extending the same right of marriage to ‘lesbian, gay, bisexual and transgender’ (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated and rests on two fundamental principles that underpin International Human Rights Law — equality and non-discrimination.

It sought a declaration stating that Section 5 of the HMA does not distinguish between homosexual and heterosexual couples and the right of same sex couples to marry should be recognised under the Act.