Same-sex marriages not recognised by our laws, society and our values: Centre to Delhi HC

New Delhi, September 14

The Centre on Monday told the Delhi High Court that marriage between same-sex couples was “not permissible” as it is not recognised by “our laws, legal system, society and our values”.

The submission was made before a bench of Chief Justice DN Patel and Justice Prateek Jalan by Solicitor General (SG) Tushar Mehta during the hearing of a PIL seeking a declaration that same-sex marriages be recognised under the Hindu Marriage Act (HMA) and the Special Marriage Act.

The Delhi High Court on Monday posted a petition seeking allowance of registration of same-sex marriage under the Hindu Marriage Act on October 21 while directing the petitioner to make certain amendments to the plea.

File a civil miscellaneous application by the next date of hearing in order to amend the petition. The matter is adjourned on October 21,” said a division bench of the high court presided by Chief Justice DN Patel and Justice Prateek Jalan while hearing a petition filed by Abhijit Iyer Mitra.

It asked the lawyer appearing for the petitioner, Abhijit Iyer Mitra, to give details of the persons who were not permitted to register their same-sex marriage.

During the course of hearing, Solicitor-General Tushar Mehta, appearing for the Centre, while opposing the petition, said the Hindu Marriage Act requires are ‘man’ and a ‘woman’ for the marriage. However, the arguments of the counsel of the petitioner were that the said gender specification isn’t there in the said Act.

The Solicitor-General while clarifying that it was his personal stand said that same-sex marriage wasn’t permitted in our culture, however, stated that he was yet to receive adequate instructions regarding the said petition from the government.

“The Solicitor-General only de-criminalised homosexuality nothing more or less,” the petitioner said further.

Mehta opposed the relief sought in the petition saying “our laws, our legal system, our society and our values do not recognise a marriage, which is a sacrament, between same-sex couples”.

He said the plea to grant recognition to or permit registration of such marriages was “not permissible” for two reasons — firstly, the petition was asking the court to legislate and secondly, any relief granted “would run contrary to various statutory provisions”.

“Unless court does violence to various laws, this cannot be done,” he added.

Mehta also said under the HMA, the various provisions regulating marriages or prohibited relationships talk of husband and wife and therefore, who would be assigned these roles where a same-sex couple was concerned.

The bench observed that worldover things were changing but it may or may not be applicable to India.

It, however, questioned the need for a PIL in the instant case, saying the people who claim to be affected are well educated and can themselves approach the court.

“Why should we entertain the PIL,” it added.

The counsel for the petitioner stated that the affected people were not coming forward themselves as they feared reprisals and therefore, a PIL was preferred.

With the direction to place these factual aspects before the court, the bench listed the matter for further hearing on October 21.

The petition has contended that despite the Supreme Court decriminalising consensual homosexual acts, marriages between same-sex couples was still not possible.

The PIL said nothing in the Hindu Marriage Act mandated that a marriage take place only between a Hindu man and a Hindu woman. It further pointed out that in 2018, the Supreme Court 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 Honourable 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 petition stated.

“...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 meaning has to be imparted to words in a statute unless such interpretation were to lead to an absurdity,” it said further. PTI/IANS