On Thursday (November 19), the Delhi High Court issued notice to the Centre regarding a petition seeking a direction to the government to recognise non-heterosexual marriages under the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA).
Delhi High Court Bench of Justices Rajiv Sahai Endlaw and Asha Menon have asked the Centre to submit its response within four weeks.
In September, a PIL was filed by Advocate Raghav Awasthi and Mukesh Sharma on behalf of the petitioners – 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 – seeking the registration of non-heterosexual marriages under Hindu Marriage Act.
As per the argument made by the petitioners, the Supreme Court in 2018 decriminalised consensual homosexual sex in India and there was nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.
“Section 5 of the [HMA] Act clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act,”. As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” the plea said.
The plea argued that the prohibition of the marriage of LGBT is an absolute discrimination towards them and also violative of the right to equality as granted by the Constitution.
In the petition various countries were named where non-heterosexual marriage is allowed such as the U.S., Australia, Germany, Canada, Spain, South Africa, Brazil, and England, where same-sex marriages are legal, the plea said, “right to marry is a part of ‘right to life’ under Article 21 of the Constitution”.
There are also two other petitions, one where two women have been cohabitating for eight years and the couple sought a direction to the Sub-Divisional Magistrate Kalkaji, New Delhi to register their marriage under the SMA.
The other plea has been moved by two men, who got married in the U.S., where non-heterosexual marriage is legal, however, could not register their marriage under the Foreign Marriage Act (FMA) as it did not have provisions to register same-sex marriages.