Arguing against the urgent hearing of a batch of pleas seeking recognition to same-sex marriages, the Centre on Monday, 24 May, told the Delhi High Court that: "You don't need marriage certificate for hospitals, nobody is dying because they don't have a marriage certificate." The matter will next be heard on 6 July.
Senior Advocate Saurabh Kirpal, for one of the petitioners, argued that the matter be decided expeditiously, as it was a ‘matter of humanity,’ reported Live Law.
“I can’t begin to describe what the LGBT community is going through at this time. If your loved one falls sick, you won’t be able to get them on a ventilator,” Kirpal told the Delhi HC.
Senior Advocate Maneka Guruswamy added that members of the community were “left out in hospitals, medical treatment,” Bar and Bench reported, quoting her.
In an earlier hearing on 25 February, the Centre opposed pleas seeking recognition of same-sex marriage, citing the concept of the ‘Indian family system'.
“Living together as partners and having sexual relationship with same sex individuals is not comparable with Indian family unit concept of a husband, wife and children, which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’ and children born out of union,” the Centre reportedly said in their reply.
Justices Rajiv Sahai Endlaw and Amit Bansal, hearing the pleas seeking recognition of same-sex marriages, asked if the Centre’s response will be applicable to all petitions.
Solicitor General Tushar Mehta replied in the affirmative, saying that he believed that the “issue is common”.
Who Are the Petitioners?
One petition, filed by members of the LGBT community Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani, argues that the conception of marriage under HMA allows for same-sex marriages. “Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act,” the petitioners contend.
They suggest that there is no specification anywhere in the Act that this has to be between a Hindu man and a Hindu woman, and so it is illegal for authorities to refuse to register same-sex marriages under the HMA.
The other two pleas that operate on different grounds, argue that registration of same-sex marriages should be possible under SMA and FMA.
The SMA petition has been filed by two women – Kavita Arora and Ankita Khanna – who have been living as a couple for the last eight years. They tried to get married under SMA in September 2020, but the relevant court officer refused to do so.
They argue that this is discriminatory on the grounds of sexual orientation, which is impermissible under Article 15 of the Constitution, citing the Supreme Court’s ruling in 2018 striking down Section 377 of the Indian Penal Code (IPC).
The FMA petition was filed by two men, Vaibhav Jain and Parag Vijay Mehta. They got married in the USA in 2017, but when they approached the consulate to register their marriage under the FMA, their request was refused.
They have raised similar arguments regarding discrimination and other violations of constitutional protections, citing the Section 377 judgment.