Can’t legalise same-sex marriage: Government

by Times of India

NEW DELHI: Two years after the Supreme Court decriminalised Section 377 IPC, four LGTBQ community members requested the Delhi high court to legalise

same-sex marriage

under the Hindu Marriage Act, but ran into stout opposition from the Centre, which said this fell foul of

several criminal

and civil laws recognising marriage only between a “biological man and woman”.

The petitioners — Delhi-based Abhijit Iyer Mitra and

Gita Thadani

along with Madurai-based Gopi Shankar M and G Oorvasi — told a bench of Chief Justice D N Patel and Justice Prateek Jalan that Section 5 of the Hindu Marriage Act, 1956, provides that “a marriage may be solemnised between any two Hindus” and hence there could be no objection to same-sex marriage between two Hindus of the LGTBQ community.

Same-sex marriage runs counter to laws: SG

The petitioners sought a declaration that since Section 5 of Hindu Marriage Act, 1956, does not distinguish between homosexual and heterosexual couples, the right of same-sex couples to marry should be recognised under the Act.

But the Centre, through solicitor general Tushar Mehta, registered its opposition to the petitioners’ plea. He said he had no instructions from the government on the specific issues raised by the petitioners. However, he said he could off-hand argue that same-sex marriage ran counter to several criminal and civil laws recognising marriage between “biological men and women” only.

He said India’s social norms and cultural ethos were codified in statutory laws, like prohibited degrees of relationships and ‘sapinda’ marriages, and added both conditions had varying criteria for a man and woman entering into a matrimonial alliance. In a same-sex marriage, who will be the man and who will be the woman to fasten this statutory condition, he asked. The SG said there were different age criteria for men and women in a marriage and asked how that was going to be enforced. In case of domestic violence in a same-sex marriage, who will be the woman for enforcement of her rights under the Protection of Women from Domestic Violence Act, 2005, he asked.

Mehta also cited Section 498A of IPC, which punishes a husband and his relatives for inflicting mental and physical torture on the wife for a jail term of up to three years.

Judicial interpretation

of laws also provide that if a woman commits suicide or dies an unnatural death within seven years of marriage, then cruelty would be presumed and the case would be investigated. He drew the HC’s attention to the problems in enforcing this provision in a same-sex marriage.

He said at the moment, he could think of these legal complexities that could arise if same-sex marriage was legalised, and said since it would require amendments to many criminal and civil laws, it would be best to leave this issue for determination by Parliament through debate.

When the bench asked the SG whether the Centre would file a reply affidavit to the petition, he said, “The issue raises pure questions of law, which I am flagging. I will file a note. Questions of law don’t require filing of an affidavit at this stage.” The HC acknowledged that world over, things were changing even if the position in law might be different and it may or may not be applicable to India.

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