The Delhi High Court on Monday heard a PIL seeking the registration of same sex marriages under the Hindu Marriage Act and has adjourned the matter till October 21.

The PIL 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 – seeks the registration of same sex marriages under Hindu Marriage Act.

Advocate Awasthi submitted before the Court that the petitioners are seeking marriage equality under the Hindu Marriage Act as the benefits available to heterosexual couples are not available to homosexual couples. The Advocate also pointed out that Section 5 of the Act does not say that marriage has to take place between a man and a woman.

The Court asked whether any homosexual couple applied for marriage registration but were denied to which Advocate Awasthi said that such marriages were not registered.

Solicitor General Tushar Mehta representing the Centre stated that as per his legal opinion, the recognition of same sex marriages under the Act would be contrary to prevailing laws.

“What petitioners are seeking cannot be granted. Our legal system, society and values do not recognize marriages between same sex couples”, the Solicitor General said.

He read out section of degree of prohibited relationships under Hindu Marriage Act, saying it refers to ‘man’ and ‘woman’. He also said that “the Supreme Court only decriminalized homosexuality” and “nothing more or less”.

He said that the official stance of the Centre would be put on record before the Court soon.

The bench on its side observed that if there are any aggrieved persons, they can approach the courts and that there was no question of a PIL. The bench also asked to give the names of persons who wish to get registered but are denied.

One of the petitioners Gopi Shankar Madurai is trying to get his marriage registered.

The matter has now been adjourned till October 21.

Click here to know more about the petition.

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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.

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