"Our culture and law doesn't recognize the concept of same-sex marriages", Solicitor General Tushar Mehta said before the Delhi High Court on Monday. He was representing the Centre in a plea seeking to recognise the rights of same-sex couples to marry under the Hindu Marriage Act, 1955.
Mehta argued that the Hindu Marriage Act doesn't recognise same-sex marriages. "As per law, marriage is only between a husband and a wife," he said. However, the Bench comprising Chief Justice DN Patel and Justice Prateek Jalan, said that the petition must be looked with an open mind. "Changes are happening across the world," noted the court.
Mehta argued that 2018's historical judgement only "decriminalises homosexuality, nothing more or less." For the unversed, a five-judge bench of the Supreme Court had unanimously decriminalised homosexual activity between consenting adults. Gay, lesbian, transgender and bisexual people have the right to constitutional equality in “all its manifestations”, and majoritarian views and popular morality cannot dictate constitutional rights, the Bench had said.
The Delhi High Court on Monday was hearing a plea filed on September 8 by four members of the LGBTI community. The plea said that nothing in the Hindu Marriage Act mandated that a marriage can take place only between a Hindu man and a Hindu woman.
“The non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon’ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign state is signatory to,” the petition said.
Meanwhile, the Bench suggested the petitioners to try and register their marriage, and if they are denied then they can approach the court. "Why don't you go and register your marriage? If you are denied, then approach the court," the Bench said.
Advocate Raghav Awasthi, who was appearing for the petitioners, said that there have been instances of gay couples getting married but were refused registration. The Court then directed the petitioners to bring on record all those persons who are aggrieved by the non-registration of same-sex marriages on the next date of hearing.
It has to be noted that the BJP had maintained a pin-drop silence after the apex court decriminalised homosexuality, with the sole exception of their Rajya Sabha MP Subramanian Swamy. He had said homosexuality was a "genetic disorder, like someone having six fingers".
The Rashtriya Swayamsevak Sangh (RSS) had, however, agreed with the Supreme Court’s judgment but said it does not support same-sex marriages. "Same-sex marriages are not compatible with norms of nature, so we do not support such relations," RSS spokesperson Arun Kumar had said.