Indian law, the legal system, society, and values don’t recognize same-sex marriage, Central to Delhi HC

Solicitor General Tushar Mehta opposed a petition that sought to recognize the right of same-sex couples to get married under the Hindu Marriage Act.

Same-sex marriage

In 2018, the Supreme Court of India decriminalized consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit but still, the Indian government is not ready to accept same-sex marriage in India.

A top lawyer for India’s federal government has opposed petitions to legalize gay marriage.

“My legal take is that it is not permissible,” Solicitor General Tushar Mehta said during a hearing in the Delhi High Court, though he added that he had yet to get instructions from the government on the issue. “Our law, our legal system, our society, our values do not recognize” same-sex marriages, Mehta said.

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

He said that such marriages cannot be granted recognition 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 said.

The High Court questioned the need for filing a PIL in the case and told the counsel for petitioners that the persons could come to the court in the event of denial of registration. Adjourning the matter to October 21, the court asked the counsel to bring on record instances of, or facts about the denial of registration of same-sex marriages.

The Bench had earlier observed that changes were happening across the world and that it would keep an open mind while hearing the matter on merits. “What our constitutional values require, we will see…,” the court said.

Advocate Raghav Awasthi, who appeared for petitioner Abhijit Iyer Mitra and others, argued that in the absence of a declaration from a court or authority, same-sex couples were being denied registration of their marriage under the 1955 Act. This, the council said, was happening despite the Supreme Court’s judgment on IPC Section 377. It was also argued that the definition within The Hindu Marriage Act does not say that the marriage has to take place between a ‘man’ and a ‘woman’.

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