Gay Marriage be Allowed Under Hindu Marriage Act, Says PIL in Delhi HC; Cites No Mention of Sex in Law

A PIL has been filed in Delhi High Court seeking recognition of same-sex marriage under the Hindu Marriage Act years after the Supreme Court’s landmark judgement decriminalised homosexuality in the country.

The public interest litigation filed earlier this week urged the court to issue a declaration to the effect that since Section 5 of the Hindu Marriage Act of 1956 mentions that “marriage can be performed between ‘any two Hindus'” and does not distinguish based on sex or gender, the right of same-sex couples to marry should be recognized under the said Act.

“Despite the fact act that there is absolutely no statutory bar under the Hindu Marriage Act of 1965 and the Special Marriage Act 1954 against gay marriage, the same are not being registered throughout the country and also in the National Capital Territory of Delhi,” the plea read, reports Live Law.

The PIL filed by advocates Raghav Awasthi and Mukesh Sharma on behalf of activists and members of the LGBTQ community including Abhijit Iyer Mitra, Gopi Shankar M, Giti Thandani and G Oorvasi. It argued that the non recognition of the rights of gay couples especially when the Supreme Court has recognised their sexuality violates various provisions of the Indian Constitution.

The plea states that while the apex court in its 2019 judgement recognised right to choose a sexual identity as part of Right to Privacy and individual autonomy under Article 21, Right to Marry is a part of Right to life and is included under the same act in the constitution.

“That Right to Marry is also stated under Human Rights Charter within the meaning of the right to start a family. The Right to Marry is a universal right and it is available to everyone irrespective of their sexual orientation and gender identity,” it said.

The plea said many “benefits that would otherwise be available to heterosexual married couples that are not available to them,” adding that the prohibition of marriage of LGBT people on the basis of sexual orientation is violative of their Right to Equality.