Representational image   | Photo Credit: Emmanual Yogini

Centre opposes plea seeking recognition of same-sex marriages

2018 judgment of Supreme Court “merely decriminalises homosexuality or lesbianism”, it tells Delhi High Court


The Central government on Monday opposed before the Delhi High Court a petition seeking recognition of same-sex marriage saying, “our legal system, society and values do not recognise marriage between same sex couples”.

Solicitor General Tushar Mehta, representing the Centre, said the 2018 judgment of the Constitution bench of the Supreme Court “merely decriminalises homosexuality or lesbianism, nothing more nothing less”.

On September 6, 2018, a five-judge Constitution Bench led by then Chief Justice Dipak Misra unanimously held that criminalisation of private consensual sexual conduct between adults of the same sex under Section 377 of the Indian Penal Code is clearly unconstitutional.

“This is my version on record. I will not even file an affidavit. I will only rely on statutory provisions. If a wife dies within seven years, there is a separate punishment. Now who will be treated as a wife [in same sex marriage],” Mr Mehta remarked.

Also read: Gay sex: Centre leaves it to wisdom of SC to decide on constitutionality of Section 377 IPC

The Solicitor General said the petition was not permissible as it was asking the court to legislate and also that any relief granted “would run contrary to various statutory provisions”.

Responding to the submission, a bench of Chief Justice D.N. Patel and Justice Prateek Jalan said, “As far as maintainability [of the petition] part is concerned, today what we are thinking is whether a PIL [Public Interest Litigation] should or should not be entertained...At the moment we are trying to understand whether we should get into the issue or whether we have to wait.

“The world over today things are changing. Those changes may be applicable in our country, or they may not be,” the bench said adding that for our country we have to see what our “constitutional values” say.

Also read: Fall of Section 377 will embolden LGBTQ community: CJI Dipak Misra

Later, the bench asked if any of the petitioners or other persons have faced difficulties while trying to register same sex marriage. “If these petitioners are well educated and their marriage registration is denied, they can surely come to the court,” the bench said asking the petitioner to bring on record details of people whose application for same-sex marriage registration was denied.

The petition was filed by Abhijit Iyer Mitra, a member of the LGBT community, and three others seeking to recognise same sex marriages under Section 5 of the Hindu Marriage Act on the ground that “it does not distinguish between homosexual and heterosexual couples”.

Also read: Section 377 judgment on same sex relations: One year later, has anything changed?

The petitioners argued that “despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi”.

“The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India,” it argued.

The petition also cited names of 27 countries including the U.S. where same sex marriage is legal.