HC gives Centre last chance for replying to pleas to recognise same-sex marriage

The Delhi High Court Friday granted a last opportunity to the Centre and the Delhi government to respond to three separate pleas, including by two couples, seeking that same-sex marriage be recognised by law.

A bench of Justices Rajiv Sahai Endlaw and Sanjeev Narula which had earlier issued notice and directed the centre and Delhi governments to file replies, said, “one last opportunity be given to the respondents to file counter-affidavits within three weeks”.

The court listed the matter for further hearing on February 25, after the Centre’s counsel submitted that they have received instructions from concerned officers last week and need some time to file the reply.

In the first petition, Abhijit Iyer Mitra and three others have contended that marriages between same-sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise same-sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).

The two other pleas are — one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same-sex marriages, and the other by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).

The high court had earlier sought responses of the central and Delhi governments on the pleas filed by Mitra and the two women. It also asked the Centre and the Consulate General of India in New York to respond to the petition by the two men.

The petition filed by equal rights activists Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi contended that homosexuality has been decriminalised by the apex court but same-sex marriages are still not being allowed under the HMA provisions.

“This is despite the fact that the said Act does not distinguish between heterosexual and homosexual marriage if one were to go by how it has been worded. It very clearly states that marriage can indeed be solemnised between 'any two Hindus'.

“In this view of the matter, it can be stated that it is against the constitutional mandate of non-arbitrariness if the said right is not extended to homosexual apart from heterosexual couples,” the petition, filed through Raghav Awasthi and Mukesh Sharma, said.

The denial of this right to homosexual couples is also against the mandate of various international conventions that India is a signatory to, the plea said.

The Centre had earlier told the high court that marriage between same-sex couples was "not permissible" as it was not recognised by "our laws, legal system, society and our values".

The petition said the case for extending the same right of marriage to 'lesbian, gay, bisexual and transgender' (LGBT) persons as those enjoyed by everyone else is neither radical nor complicated and rests on two fundamental principles that underpin International Human Rights Law — equality and non-discrimination.

It sought a declaration stating that Section 5 of the HMA does not distinguish between homosexual and heterosexual couples and the right of same-sex couples to marry should be recognised under the Act.

The two women, who were represented by senior advocate Maneka Guruswamy and lawyers Arundhati Katju, Govind Manoharan and Surabhi Dhar, have said in their plea that they have been living together as a couple for 8 years, in love with each other sharing the highs and lows of life, but unable marry as they are a same-sex couple.

The women, aged 47 and 36, have contended that not being allowed to get married has denied them several rights — like owning a house, opening a bank account, family life insurance — which opposite-sex couples take for granted.

"Marriage is not just a relationship between two individuals – it brings two families together. But it is also a bundle of rights. Without marriage, the petitioners are strangers in law. Article 21 of the Constitution of India protects the right to marry a person of one's choice and this right applies with full force to same-sex couples, just as it does to opposite-sex couples," they have contended in their plea.

The two men, also represented by the same set of lawyers, were married in the United States, but their marriage was not registered under the FMA by the Indian consulate as they were a same-sex couple.

"The Indian consulate would have registered the marriage of any similarly placed opposite-sex couple," they have contended.

The couple, in a relationship since 2012 and got married in 2017, have also claimed that during the Covid-19 pandemic, non-recognition of their marriage by the laws here continues to disentitle them to travel as a married couple to India and spend time with their families.

"Further, the FMA ought to be read to apply to same-sex marriages and is unconstitutional to the extent it does not do so," their petition has said.

They have also said, "non-recognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfilment of lesbian, gay, bisexual, transgender and queer (LGBTQ) couples".