In the previous hearing by the Delhi High Court in January, the Bench led by Justice Rajiv Sahai Endlaw gave the Centre its final chance to submit its response before the case would be adjourned on February 25, 2021.
Accordingly, the pleas requesting the approval of same-sex unions under the Hindu Marriage Act, the Special Marriage Act & the Foreign Marriage Act were heard today.
Status: The Centre has rejected the request for approval of same-sex marriages, invoking the principle of ‘the Indian family structure’.
The Court has adjourned the matter till April 20, 2021.
Reasons stated by the Central government to Delhi HC:
“Despite the decriminalization of Section 377 of the IPC, the Petitioners cannot claim a fundamental right for same-sex marriage being recognised under the laws of the country.”
The affidavit claimed that obtaining a decree for the officiation or registry of marriages has more implications than mere legal approval:
“Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having sexual relationship by same sex individuals [which is decriminalized now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’, and the children born out of the union between the two.”.
Marriages are policed, allowed or forbidden only by the legislation of the competent law; the Centre stated.
“Marriage” is essentially a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws. The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws,” it added.
HC cannot provide legal status to those marriages if the law does not authorize them to do so, the Centre said.
In the meantime, the Delhi Government has officially said that the court will determine the way forward.
One petition, submitted by LGBT group representatives Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani, asserts that the definition of marriage under the Hindu Marriage Act (HMA) enables same-sex marriages. “It is clear from Section 5 of the Act that marriage can be conducted between ‘any two Hindus’ under the Act,” the petitioners claim.
This indicates that there is no restriction anywhere in the Act that this must be between a Hindu man and a Hindu woman, and it is also unconstitutional for officials to fail to register same-sex marriages under the HMA.
Other two pleas are based on separate grounds in that they argue registration of same-sex partnerships should be possible under the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA).
The SMA case was filed by two women, Kavita Arora and Ankita Khanna, who’ve been living as a couple for 8 years. Highlighting that this is discrimination on the basis of sexual identity, and is unlawful under Article 15 of the Constitution, in response to the decision of the SC in 2018, which repealed Section 377.
The FMA plaintiffs raised similar arguments related to discrimination and violations of other basic rights under Section 377.
Occurring in the petitions regarding the above-mentioned acts, Senior Advocate Menaka Guruswamy urged the Court to bring the case to a hearing sooner, adding that she could argue the case today if necessary.
The request for an earlier date today caused SG Mehta to ask whether there was any urgency involved. And Guruswamy replied that there was urgency and priority to the matter, Mehta said, “There are more urgent and genuine issues.”
He continued that the concern of whether there is an urgency is a relative one. Another lawyer added that each plaintiff would deem their case to be urgent.
The Judge ultimately referred the matter to the Court for a hearing on 20 April, 2021.
Adjudications are only being pushed to further “hearings” … But aren’t laws gender-neutral?
All same-relationships remained a crime before the 2018 SC ruling, despite the historic verdict, same-sex spouses have no legal standing, their relationships have no legitimacy.
The Center’s invocation of the ideal Indian family unit involving marriage between a man and a woman reeks of patriarchal notions of gendered norms, labour and violence as well as queerphobia. On October 15, Delhi HC indicated that it was necessary to “shed our inhibitions,” but the SC could reverse any ruling.
Without a constitutional right to marriage, many LGBTQ couples lack legal recognition and find many facets of normalizing their relationships and themselves, extremely challenging in bureaucratic India.
Issues such as complications in renting homes, property rights, medical care and limits on shared bank accounts are closely linked to the lack of legalization of queer marriages in India.
Sources: Bar & Bench, HT, Livelaw*