The Delhi High Court on Friday, 8 January, adjourned the batch of petitions it is hearing for legalisation of same-sex marriages to 25 February as the Centre has not yet filed its affidavit responding to the petitions.
Back in October and November 2020, the high court had issued notice to the Centre on three pleas regarding the legalisation of same-sex marriages. A bench of Justices Rajiv Sahai Endlaw and Sanjeev Narula was supposed to hear the petitions on Friday, but adjourned them to give the Centre time for its replies.
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 the Hindu Marriage Act (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 operate on different grounds, instead arguing that registration of same-sex marriages should be possible under the Special Marriage Act (SMA) and the Foreign Marriage Act (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 the 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 IPC.
They also argue that continuing bar on same-sex marriages violates the dicta of that judgment, including on the fundamental rights to personal liberty, privacy, equality and freedom of expression.
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.
The petitioners in both these cases are being represented by senior advocate Menaka Guruswamy and advocates Arundhati Katju, who had been part of the challenge to Section 377, along with Govind Manoharan and Surabhi Dhar.
The Centre’s response to the petitions is still awaited at this point. During the Section 377 hearings, the central government had said that while they did not oppose the decriminalisation of consensual homosexual acts, the issue of marriage, adoption and other family rights was separate.
During a hearing on the HMA petition in September, Solicitor General Tushar Mehta had said that Indian values didn’t recognise same-sex unions, as reported in The Hindustan Times.
(With inputs from The Hindustan Times)
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