A petition has been filed at the Delhi High Court seeking the recognition of the right of SOGIESC (Sexual Orientation, Gender Identity and Expression, and Sex Characteristics) community members to marry under the Hindu Marriage Act, 1955.
The public interest litigation (PIL) has been filed by defence and strategic affairs expert Abhijit Iyer Mitra, intersex activist Gopi Shankar Madurai, transgender activist G Oorvasi and senior women rights and lesbian activist Giti Thadani .
The petitioners have contended that Section 5 of the Hindu Marriage Act permits ‘any two Hindus’ to solemnise their marriage under the Act and nowhere does it state that the marriage must be between a cis Hindu man and cis Hindu woman and therefore allowing for members of the SOGIESC community to marry under the Act.
However, clause (iii) of Section 5 of the Act states that the marriage may be solemnized if the ‘bridegroom’ has completed 21 years and the ‘bride’ 18 years at the time of marriage though there is no explicit definition of bridegroom being a cisman and the bride to be a ciswoman.
They note that despite having no statutory bar under the Hindu Marriage Act, 1955 and Special Marriage Act, 1956, marriage between SOGIESC members are not being recognized across the country, as a result of which benefits available to heterosexual couples are made unavailable to them.
Although section 377 of the Indian Penal Code that criminalizes homosexual acts has been struck down, it is not possible for gay couples to get married.
The public interest litigation (PIL) filed on behalf of the petitioners by advocates Mukesh Sharma and Raghav Awasthi note that denial of the right to marry encroaches upon the fundamental rights of LGBT people enshrined in the Constitution.
“The Right to Marry is stated under 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 noted.
It is to be noted that a similar petition is pending at the Kerala High Court for the right of recognition of homosexual marriages under the Special Marriages Act.
Speaking to The Commune, Gopi Shankar Madurai said that a 2019 Madras High Court judgement upheld the marriage between a man and a transwoman where the court observed that the word ‘bride’ in the Hindu Marriage Act included a transwoman too.
Ze also said that Lord Aravan, believed to be the son of the third Pandava Arjuna and Naga princess Uloopi, married Lord Krishna as per to Aravan spiritual traditions.
Gopi said that diverse indigenous Hindu non-Agamic and Agamic Adyatmik traditions recognize the love of LGBTQI communities.