A gay couple on Monday filed a writ petition in the Kerala High Court challenging the provisions of the Special Marriage Act 1954, reported Live Law. In their plea, the couple alleged that the Act was discriminatory as it does not permit the registration of marriages of homosexual couples. Justice Anu Sivaraman issued notices to the governments of Centre and Kerala, asking for their responses.
The petition was filed jointly by Kochi natives Nikesh Usha Pushkaran and Sonu MS, who got married in a temple in July 2018. However, their wedding has not yet been legalised and religious authorities have also refused to solemnise their union.
The petitioners argued that non-recognition of same-sex marriage violated the principles of equality, non-arbitrariness, non-discrimination, individual dignity guaranteed by the Constitution of India.“Though the text of the Act does not exclude homosexual unions under its ambit expressly, Section 4 and Schedules 2-4 of the Act carry a heterosexual undertone in its language as it shows marriage as an affair between a male and a female,” read their petition, according to The Indian Express.
The couple said that “civil rights and liberties like marriage, adoption, insurance, etc are still not accessible” even after the Supreme Court decriminalised homosexuality in a historic verdict in 2018. “…The petitioners have suffered public humiliation after they made a disclosure of their love for each other,” they said. “Internet trolls and other homophobic elements in the society have also attacked the petitioners. But greater is the insult and indignity the petitioners have suffered at the hands of law–the impugned provisions of the Special Marriage Act 1954 which refuse to recognise the petitioners’ union, causing immense pain and agony to the petitioners.”
The petitioners said they were being excluded from enjoying certain rights and privileges that comes with marriage, reported The News Minute. “Being married carries along with it the right to maintenance, right of inheritance, a right to own joint bank accounts, lockers; nominate each other as a nominee in insurance, pension, gratuity papers etc,” they said. “All these are unavailable to the petitioners due to their exclusion from the institution of marriage, making the said exclusion more discriminatory.”
Pushkaran and Sonu have asked the court to register their marriage under the Special Marriage Act and issue a certificate of marriage. They also asked that all homosexual couples be allowed to register their marriages under the Act.