Two years after the Supreme Court de-criminalised Section 377 IPC, four LGTBQ community members requested the Delhi high court to legalise same-sex marriage under the Hindu Marriage Act, but ran into stout opposition from the Centre, which said this fell foul of several criminal and civil laws recognising marriage only between a “biological man and woman”.
The petitioners—Delhi-based Abhijit Iyer Mitra and Gita Thadani along with Madurai-based Gopi Shankar M and G Oorvasi — told a bench of Chief Justice D N Patel and Justice Prateek Jalan that Section 5 of Hindu Marriage Act, 1956, provides that “a marriage may be solemnised between any two Hindus” and hence there could be no objection to same-sex marriage between two Hindus of the LGTBQ community.
The petitioners sought a declaration that since Section 5 of Hindu Marriage Act, 1956, does not distinguish between homosexual and heterosexual couples, the right of same-sex couples to marry should be recognised under the Act.
But the Centre, through solicitor general Tushar Mehta, registered its opposition to the petitioners’ plea. He said he had no instructions from the government on the specific issues raised by the petitioners. However, he said he could off-hand argue that same-sex marriage ran counter to several criminal and civil laws recognising marriage between “biological men and women” only. He said India’s social norms and cultural ethos were codified in statutory laws, like prohibited degrees of relationships and ‘sapinda’ marriages, and added both conditions had varying criteria for a man and woman entering into a matrimonial alliance.
In a same-sex marriage, who will be the man and who will be the woman to fasten this statutory condition, he asked.
The SG said there were different age criteria for men and women in a marriage and asked how that was going to be enforced. In case of domestic violence in a same-sex marriage, who will be the woman for enforcement of her rights under the Protection of Women from Domestic Violence Act, 2005, he asked. Mehta also cited Section 498A of IPC, which punishes a husband and his relatives for inflicting mental and physical torture on the wife for a jail term of up to three years.