Same Sex Marriage Not Permissible says Solicitor General in Delhi High Court – Free PDF

• A five-judge Constitution bench of the Supreme Court unanimously decriminalised part of the 158-year-old colonial law under Section 377 of the IPC which criminalises consensual unnatural sex.
• A five-judge Constitution bench headed by Chief Justice Dipak Misra termed the part of Section 377 of the Indian Penal Code which criminalises unnatural sex as irrational, indefensible and manifestly arbitrary.

It also said it is violative of right to equality.

PETITION FILED BEFORE THE DELHI HC

• Cause: 2 Years After SC Judgement, same-sex couples were being denied registration of their marriage under the 1955 Act
• The petition was filed by Abhijit Iyer Mitra, a member of the LGBT community, and three others seeking to recognise same sex marriages under Section 5 of the Hindu Marriage Act on the ground that “it does not distinguish between homosexual and heterosexual couples”.
• The petitioners argued that “despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi”.
• This was happening despite the Supreme Court’s verdict on IPC Section 377. It was also argued that the definition within The Hindu Marriage Act does not say that the marriage has to take place between a ‘man’ and a ‘woman’. The petition also cited names of 27 countries including the U.S. where same sex marriage is legal.

PETITION NOT “PERMISSIBLE”…

• The Solicitor General said the petition was not permissible as it was asking the court to legislate and also that any relief granted “would run contrary to various statutory provisions”.

ARGUMENTS GIVEN BY THE CENTRE

• Solicitor General Tushar Mehta, representing the Centre, said the 2018 judgment of the Constitution bench of the Supreme Court “merely decriminalises homosexuality or lesbianism, nothing more nothing less”.

• Further, he said, “our legal system, society and values do not recognise marriage between same sex couples”.

• “This is my version on record. I will not even file an affidavit. I will only rely on statutory provisions. If a wife dies within seven years, there is a separate punishment. Now who will be treated as a wife [in same sex marriage],” Mr Mehta remarked.

OBSERVATIONS BY DELHI HC

• “The world over today things are changing. Those changes may be applicable in our country, or they may not be,” the bench said adding that for our country we have to see what our “constitutional values” say.

OBSERVATIONS BY DELHI HC

• Later, the bench asked if any of the petitioners or other persons have faced difficulties while trying to register same sex marriage. “If these petitioners are well educated and their marriage registration is denied, they can surely come to the court,” the bench said asking the petitioner to bring on record details of people whose application for same-sex marriage registration was denied.

OBSERVATIONS BY DELHI HC

• “The prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity is an absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India,” it argued.
• Let’s Wait for the Final Judgement.

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