TW: systemic homophobia, transphobia, misogyny
While hearing a petition filed by a woman named Anju Devi, the Allahabad High Court maintained that same sex marriage is against Indian culture and various coexisting religions in the land. In the petition she had urged the court to ensure the custody of her daughter (23 yo) alleging that she had been illegally detained by another 22-year-old woman. In response, the court directed both the women to be produced in the court.
The couple appeared in the court and submitted that they had entered into marriage as mutually consenting adults. They produced a matrimonial contract letter in the court as well. They then urged the court to recognise their marriage. They referred to the Navtej Johar judgement in their argument, while also pointing out that the Hindu Marriage Act is not opposed to homosexual marriage.
The Additional Government Advocate representing the UP government argued against this reasoning by stating that Indian law is based upon Indian culture and marriage is considered a ‘sacred sanskaar‘. He argued that in the Hindu marriage act the marriage was supposed to be between a man and a woman.
In the absence of even one of these the marriage cannot be considered valid. He added to this with references to the fact that Special Marriage Act 1954, and even the Foreign Marriage Act 1969 had not provided for same sex marriage. The state of UP furthered insisted that not just Hinduism but Muslim, Buddhist, Jain, Sikh, among other regional religions had also not recognized homosexual marriage.
“As per the Indian law and culture, a biological husband and biological wife have been said to be essential for marriage and only their marriage has been recognized. In their absence, homosexual marriage cannot be recognized as it lacks male and female, and neither can they produce children. Marriage is considered important in Hindu law, under which both men and women live together and carry forward the human chain by producing children,” said the AGA.
His arguments were found to be of sound reasoning by Justice Shekhar Kumar Yadav who quashed the girls’ demand for recognition of their marriage.