15 September 2020

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BJP Indian government opposes Same Sex Marriage in High Court

BJP Indian government opposes Same Sex Marriage in High Court

Tuesday, September 15, 2020

The Delhi High Court was hearing a PIL (public interest litigation) petition filed by four LGBTQ individuals namely -

a-security and foreign policy commentator Abhijit Iyer Mitra; 

b-Tamil Nadu-based intersex activist Gopi Shankar M;

c- transgender activist G Oorvasi; 

d-Giti Thadani, a founder member of the Sakhi collective and journal of contemporary and historical lesbian life in India, as per media reports.

The petition was filed through advocates Raghav Awasthi and Mukesh Sharma.

The plea stated, "Non-recognition of the rights of LGBT couples who wish to get married is a violation of the Right to Equality guaranteed to all persons within the territory of India under Article 14 of the Constitution."

The plea said not having the option of marriage is "discriminatory and creates a second class of citizens,"

The plea had argued that not recognizing same-sex marriages legally is discriminatory, pointing out that India's Supreme Court had decriminalized homosexuality in September 2018.

The petition argued that Hindu Marriage Act "doesn't distinguish between heterosexual and homosexual marriage," the plea argued. Section 5 of the Act reads that "a marriage may be solemnized between any two Hindus."

It argued that despite no statutory bar under the Act, same-sex marriages are not being registered across India.

Hence, benefits available to heterosexual married couples are not available to same-sex couples, it stated.

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.”

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.

A bench of Delhi High Court Chief Justice DN Patel and Justice Prateek Jalan was hearing the plea.

Appearing for the Centre, BJP Government Solicitor General Tushar Mehta contended, "Our law, society, values don't recognize marriage—which is a sacrament—between a same-sex couple."

Solicitor General Tushar Mehta said, that “My legal take is that it is not permissible,” Solicitor General Tushar Mehta said during a hearing in the Delhi High Court, though he added that he had yet to get instructions from the government on the issue. “Our law, our legal system, our society, our values do not recognize” same-sex marriages.

Same-sex marriages are not a part of our culture, the Centre told the Delhi High Court on Monday while opposing a plea demanding the recognition of same-sex marriage rights under the Hindu Marriage Act 1955.

He said, for instance, Section 498A of the Indian Penal Code, talks about a "husband or relative of husband of a woman subjecting her to cruelty" to illustrate how the law refers to a "husband and a wife" in a marriage.

The judges asked whether seeking a declaration to legalize same-sex marriage in the public interest is permissible and directed the petitioners, who include gay rights activists, to place facts about their efforts to register such marriages.

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.

After Monday’s hearing, held over video conferencing, a two-judge panel of the high court adjourned the case for a preliminary hearing on October 21,2020

Reality views by sm 

Hindu religious books do not recognize the provision of divorce, still there is a provision of divorce, divorce law for Hindus.

Hindu religious books don’t have any age limit for marriage of boys and girls still today there is an age limit for marriage of a boy and girl.

In 2018, when homosexuality was legalized by Supreme Court of India, BJP did not take any clear stand, it allowed the Court to do what was necessary.

This time also hope BJP Government does not oppose the same sex marriage and let the courts legalize it.

India needs to legalize the same sex marriage and give them all rights. 

Hope High Courts will legalize the same sex marriage in India.

Tags – Gay Sex India Same Sex Marriage PIL