Centre opposes same-sex marriage plea in high court
NEW DELHI: The Centre on Monday opposed a plea seeking legalisation of marriage for gay couples under the 1955 Hindu Marriage Act even as the Delhi high court observed that changes were taking place around the world and it needed to be examined whether it was applicable to India.
The petition was filed last week by four members of the lesbian, gay, bisexual, transgender and intersex (LGBTI) community who invoked Article 14 (right to equality), Article 21 (right to life) and Article 25 (freedom of religion) to argue that right to marriage for same-sex couples was a part of that fundamental right.
“These marriages run contrary to the provisions which are already in place in our society. Our values do not recognise a marriage, which is sacrosanct, between two people of samesex,” Solicitor General Tushar Mehta, appearing for the Centre, told a bench comprising Chief Justice of the Delhi high court DN Patel and Justice Prateek Jalan. Mehta clarified he was expressing his personal opinion.
The Public Interest Litigation (PIL) claimed that Section 5 of the Hindu Marriage Act did not specify that the marriage must be between a Hindu man and a Hindu woman, but instead refers to marriage between “two Hindus”. “It does not concur with constitutional values,” Mehta said. To this, Justice Jalan said changes have taken place across the world and when two men marry in a foreign country, neither is considered a wife. He further said all aspects of the plea need to be examined.
The Supreme Court had decriminalised homosexuality, but not provided for anything further, Mehta told the court, referring to the September 6, 2018 judgment that read down Section 377.
Mehta later clarified to the Hindustan Times that while he was yet to receive instructions from the Centre, he had pointed out to the court the legal provisions to show that the law did not permit same sex marriages. “I said culture of any country is codified in a statutory law like Degrees of Prohibited relationship, special or additional rights to “wife”, different age limits for “husband” and “wife”, use of the terms “husband” and “wife” (which cannot be determined in same sex marriage) etc, special protection to “wife” in criminal law such as section 498-A of the IPC etc. Unless several statutory provisions are altered (which the court cannot do) the relief as prayed for cannot be granted,” Mehta said.
Appearing for petitioners, Raghav Awasthi told court that the fundamental rights of gay couples were getting hampered, even as there was no legal prohibition on such marriages.
These marriages run contrary to the provisions which are already in place in our society
TUSHAR MEHTA, SG