Delhi HC asks Centre to respond to plea seeking legal recognition of same-sex marriages

Four members of the lesbian, gay, bisexual, transgender, and intersex community filed the plea in September saying there is nothing in the Hindu Marriage Act that mandated that a marriage can take place only between a Hindu man and a Hindu woman

The Delhi high court on Thursday sought the Centre’s response to a plea seeking legal recognition of same-sex marriages. The plea has contended that the Hindu Marriage Act does not distinguish between heterosexual and homosexual marriages if one were to go by how it is worded. It added the Act very clearly states that marriage can be solemnised between “any two Hindus”.

The petition referred to the 2018 Supreme Court order that read down Section 377 of the Indian Penal Code, which criminalised homosexuality.(REUTERS File)

The court has tagged the matter with two similar pleas and posted them for hearing in January.

Four members of the lesbian, gay, bisexual, transgender, and intersex community filed the plea in September saying there is nothing in the Act that mandated that a marriage can take place only between a Hindu man and a Hindu woman.

The petition referred to the 2018 Supreme Court order that 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 a signatory to,” the plea said.

The petition said it will be against the Constitutional mandate of non-arbitrariness if the right is not extended to homosexual apart from heterosexual couples.

“…the denial of this right to homosexual couples is also against the mandate of various international conventions that India is a signatory to. Finally, the eponymous Golden Rule of Interpretation also states that plain 7 meaning has to be imparted to words in a statute, unless such interpretation were to lead to an absurdity,” the plea said.

This is the second petition to be filed on the issue of same-sex marriage rights. In January, a couple filed a petition in the Kerala high court challenging the Special Marriage Act.

In October, the Delhi high court sought responses from the Centre and the Delhi government to pleas by two same-sex couples seeking legal recognition of their marriages under the Special Marriage Act and the Foreign Marriage Act. It observed that “laws are gender-neutral” and are for the rights of “every citizen”.

Two mental health professionals filed the first petition saying they had been living together as a couple for eight years, took care of each other’s parents, are in love but unable to get married.

“The petitioners are like any other couple you might meet, except they are both women,” their petition said.

Two men, who got married in 2017 in the US where same-sex marriages are legal, filed the second petition. An Indian consulate refused to register their marriage this year under the Foreign Marriage Act.

The two had been in a relationship since 2012 and are supported by families and friends. They said during the Covid-19 pandemic, India’s non-recognition of their marriage prevented them from travelling to India as a married couple.