Delhi High Court
Delhi High Court

The Delhi High Court, while hearing a public interest litigation (PIL) seeking to recognise same-sex marriage under the Hindu Marriage Act on Monday, asked the petitioner to bring on record a list of persons aggrieved by the denial of registration of same-sex marriages.

A bench of Chief Justice DN Patel and Justice Prateek Jalan granted time to the petitioners to submit a list of persons aggrieved by non-registration of same-sex marriage under the Hindu Marriage Act and also asked to amend the petition while adjourned the matter for October 21.

During the course of the hearing, Solicitor General Tushar Mehta appearing for the Central government raised a question on the petition and said court can't legislate. "Supreme Court only de-criminalised homosexuality nothing more or less," he said.

Expressing his personal legal opinion, Mehta said, "such marriages are contrary to the statutory provision, our society, our values do not recognise marriage between two people of same-sex".

However, arguments of the counsel of the petitioner were that the said gender specification isn't there in the said Act.

The plea, filed by petitioners Raghav Awasthi and Mukesh Sharma, said that despite the fact that the Supreme Court has decriminalised homosexuality, same-sex marriage is still not being allowed under the provisions of the Hindu Marriage Act.

The public suit urged the court to issue a declaration to the effect that since Section 5 of the Hindu Marriage Act of 1956 does not distinguish between Homosexual and Heterosexual couples, the right of same-sex couples to marry should be recognised under the said Act.

It said that the petitioners have approached the High Court for enforcement of their fundamental rights granted under the Constitution and added that denying the LGBT community the option to marry is absolute discriminatory and treats them as second class citizens.

The plea said that as of now, the law sees the members of LGBT community as individuals only and not as couples and claimed that the LGBT community members are forced to suppress their feelings of getting married to the person of their own choice.

It said homosexual couples should have access to the same benefits enjoyed by the heterosexual married couples.

"That it is further submitted 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 (NCT) of Delhi," the plea said.

"As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them," it added.

The plea said that the prohibition of the marriage of LGBT people on the basis of sexual orientation and gender identity is absolute discrimination towards them and is also violative of Right to Equality as granted by the Constitution of India.

It is now a well-admitted fact that the Right to Marry is a part of "Right to Life" under Article 21 of the Constitution of India, the plea said.

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