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The Court was hearing a public interest litigation seeking a declaration to recognize the right of same-sex couples to marry under the Hindu Marriage Act, 1956.
Our legal system and values do not recognise marriage, which is sacramental, between same-sex couples, Solicitor General Tushar Mehta today told the Delhi High Court. (Abhijit Iyer Mitra & Ors vs UOI)
A Division Bench of Chief Justice DN Patel and Justice Prateek Jalan was hearing a public interest litigation seeking a declaration to recognize the right of same-sex couples to marry under the Hindu Marriage Act, 1956.
The PIL has been preferred by Abhjit Iyer Mitra, Gopi Shankar M, Giti Thadani, G Oorvasi (Petitioners).
What Petitioners are seeking cannot be granted, SG Mehta said as he claimed that the same would destroy the statutory provisions that are already in place.
Referring to the section on degrees of prohibited relationships under Hindu Marriage Act, SG Mehta pointed out that the Act referred to marriage between a "man" and a "woman".
SG Mehta specifically referred to Section 498A IPC and the laws against domestic violence to state that the existence of a "wife" and a "husband" was essential and the same is not possible in case of same-sex marriage.
SG Mehta also clarified that it was his analysis of the statutory regime and that he did not have instructions from the Centre.
"The Court may bear in mind that (the Supreme Court) only decriminalized homosexuality. Nothing more or less.", he added.
Remarking that at the present stage, the primary issue was of the maintainability of the PIL, the Court questioned the counsel for the Petitioners, Advocate Raghav Awasthi if any homosexual couple had been denied registration of their marriage.
"If there are any aggrieved persons, they can can come. No question of a PIL.", the Court said.
Advocate Awasthi informed the Court that while there were several persons who were denied marriage registration on the ground of being a homosexual couple, none of them wished to personally come before a court of law.
One of the petitioners, Mr Gopi Shankar is trying to get his marriage registered, Awasthi added.
The Court deferred hearing in the PIL and directed the Petitioners to submit a list of persons who were aggrieved by non-registration of same-sex marriage under Hindu Marriage Act.
The Petitioners' case
The Petitioners' have pleaded that in spite of homosexuality being decriminalized, same-sex marriage was still not being allowed under the provisions of Hindu Marriage Act, especially when the Act speaks of solemnization of marriage between “any two Hindus”.
Arguing that Right to Marry is part of Article 21 of the Constitution of India, the Petitioners have contended,
“It is against the Constitutional mandate of non-arbitrariness if the said right (to marry) is not extended to homosexual apart from heterosexual couples.”
It is further submitted that as a result of the absence of legal recognition of same-sex union, social recognition of homosexual couples was also lagging behind.
The Petitioners have also asserted that the denial of right to marriage to homosexual couples is also against the mandate of various international conventions that India is signatory to, including the Charter of Human Rights.
The petition was filed through Advocates Raghav Awasthi and Mukesh Sharma.
The matter would be heard next on October 21.