Petition in Delhi High Court demands recognition for homosexual marriages under the Hindu Marriage Act

The petitioners claim that HMA permits any two Hindus to solemnise their marriage and therefore, homosexuals should also have the right to marry and have their marriages recognised.

A petition has been filed in the Delhi High Court seeking the recognition of same sex marriages under the Hindu Marriage Act. The petition has been filed by Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi and the matter will be heard by Chief Justice DN Patel and Justice Prateek Jalan.

The petitioners claim that Hindu Marriage Act permits any two Hindus to solemnise their marriage and therefore, homosexuals should also have the right to marry and have their marriages recognised.

“That it is further submitted 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 Delhi,” the plea claims. “As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it stated.

The claim that Act does not mandate that a marriage is between a man and a woman appears to be unfounded. Section 5(iii) clearly mentions that a marriage between two Hindus can be solemnised if the groom is 21 years old and the bride is 18 years old at the minimum. It is a clear indication that the Act recognises marriage only between a man and a woman.

The petition filed by advocates Mukesh Sharma and Raghav Awasthi states, “…the non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon’ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign State is signatory to.”

“That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity,” it added. The petition also argued that denial of the Right to Marry is in violation of the Right to Equality and Right to Life as guaranteed by the Indian Constitution.