Solicitor General Tushar Mehta on Monday opposed a petition in the Delhi High Court seeking to recognise the right of same sex couples to get married, saying that Indian culture does not recognise such a concept, Live Law reported.
A bench comprising Chief Justice DN Patel and Justice Prateek Jalan replied that they needed to examine the petition with an open mind. “Changes are happening around the world,” the court said.
The petition, filed on September 8 and taken up by the High Court on Monday, stated that the 1995 Hindu Marriage Act allowed for the marriage of any two Hindus without discriminating between homosexuals and heterosexuals.
Mehta, who represented the Centre, argued that the Act did not allow or recognise the concept of same-sex marriages. “As per law, marriage is only between man and wife,” he said. Mehta, however, clarified that it was his analysis of the statutory regime and that there was no such instruction from the Centre.
He also argued that the effect of the 2018 Supreme Court verdict decriminalising homosexuality was only limited to the decriminalisation and “nothing more, nothing less”. He added that the petition does not even “deserve filing an affidavit”.
The petition was filed by Tamil Nadu intersex activist Gopi Shankar M, journalist and defence analyst Abhijit Iyer Mitra, transgender activist G Oorvasi, and Giti Thadani, founder member of lesbian archive Sakhi.
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 1954 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi”. The denial of right to get married violates the fundamental rights of the members of the LGBT community, they added.
The plea cited Article 21 of the Constitution and said that the right to marry was an admitted part of Right of Life. Seeking marriage for same-sex couples was neither radical nor complicated, they said, adding that discrimination against one community by denying them right enjoyed by another is also in violation of Rights of Equality, it added.
The Delhi High Court suggested that the petitioners should first to try get their same-sex marriages registered and move the court if they are denied the same. Advocate Raghav Awasthi, appearing for the petitioners, told the court that there have been such instances but added that the couples were unwilling to appear before the court.
The court asked the petitioners to bring such people on record and posted the matter to October 21.
Correction and clarification: An earlier version of this report attributed Tushar Mehta’s personal analysis to that of the Centre. The error has been corrected.