This post is written by Parul Khurana.

A plea has been filed by the activist and members of LGBTQ committee before the Delhi high court seeking to recognize the rights of same-sex couples to get married under the Hindu marriage act, 1956   which is being opposed by the solicitor general of India Tushar Mehta.

Tushar Mehta submitted that the concept of same-sex marriage is not recognized under the Indian culture as well in our Indian laws. “As per the Hindu marriage act, a marriage is only between a husband and a wife”. The act does not itself recognize the same-sex marriages. 

Further he submitted that the culture of any country is codified in statutory provisions and unless those statutory provisions are amended, the relief as prayed for cannot be granted he said. ‘He said that we live in a country where the laws are codified in statutory provisions and it will remain the same unless it is altered’. 

However the bench comprising chief justice DN Patel and Justice Prateek Jalan expressed that such a petition must be viewed with an open mind. Acknowledging that though the position of law might be different, the bench stated that change is happening across the world. 

But if we talk about the Supreme Court’s 2018 judgment in Navtej Singh Johar’s case it only talks about decriminalize consensual homosexual activities, nothing more and nothing less.

The Supreme Court of India unanimously held that Section 377 of the Indian Penal Code, 1860, which criminalized ‘carnal intercourse against the order of nature’, was unconstitutional in so far as it criminalized consensual sexual conduct between adults of the same sex. The petition, filed by  Navtej  Singh Johar, challenged Section 377 of the Penal Code on the ground that it violated the constitutional rights to privacy, freedom of expression, equality, human dignity and protection from discrimination. The Court reasoned that discrimination on the basis of sexual orientation was violative of the right to equality, that criminalizing consensual sex between adults in private was violative of the right to privacy, that sexual orientation forms an inherent part of self-identity and denying the same would be violative of the right to life, and that fundamental rights cannot be denied on the ground that they only affect a small section of the population.

Despite the Supreme Court reading down the section 377 of the Indian penal code to decriminalize consensual homosexual acts in India two years ago, it is not possible for gay couples to get married.

The court further suggested to the petitioners, who are activists and members of the LGBTQ community, could first try and get their marriage registered and in case they were denied, they could approach the court with their grievance. But further it was argued that there have been instances of gay couples getting married but being refused registration.

There was another petition filed on behalf of activists and members of LGBTQ community which avers that the Hindu marriage act allows a marriage to take place between any two Hindus without discriminating between the homosexuals and heterosexuals. Further it was argued that nowhere in the section 5 of the Hindu marriage act it is mentioned that the two Hindus getting married must be a Hindu man and the Hindu women. 

Further it was argued that the non- recognition of the rights of gay couples, especially when their sexuality has been recognized as such as valid by the hon’ble  supreme court of India is violative of various provisions of constitution of India . Discriminating against one community and denying them the rights which are available to the other heterosexual community can also be considered as the violation of their fundamental right of equality.

If we talk about article 21 of the constitution, it is stated that the right to marry comes under the aspect of the right to life, and contending the right should extent to couples of the same sex is neither radical nor complicated.

Basically the contention is based on two universally accepted principles of equality and non- discrimination. It is argued that when the supreme court has accepted the right to choose sexual  identity as a fundamental right as per the 2014  NALSA  case  and decriminalized homosexuality in 2018 Navtej Singh Johar case, then why not homosexual marriage, it won’t affect the marriage institution of India. I feel like we are moving in a circle, or we are not moving at all. We are taking one step ahead and then one step back making it stationary but since there is movement, we feel that we have moved ahead.                                                                                                                

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