Delhi High Court on Marriage, Equality and Same-Sex Marriage

By Sukhmani Kaur-

Marriage is a socially and ritually recognised institution, traditionally between a man and a woman. Marriage is an integral part of every person’s life. It is through marriage that the human race has propagated future generations. Marriage is the most important institution of human society. It is a universal phenomenon and has been the backbone of human civilisation. We can say that the marriage is as old as the institution of the family. Both these institutions are vital for society.


The family depends upon the marriage. Marriage regulates the sex life of human beings, thereby giving them a chance to procreate, thus aiding the survival of the human race. Marriage creates new social relationships and reciprocal rights between spouses. It establishes the rights and the status of the children when they are born. Each society recognises certain procedures for creating such relationships and rights. Society prescribes rules for prohibition, preferences and prescriptions in deciding marriage. It is this institution through which a man sustains the continuity of his race and attains satisfaction in a socially recognised manner. Sociologists and anthropologists have given definitions of marriage.


Although different thinkers have tried to define marriage, there is no universally accepted definition of marriage. There seems to be, however, a consensus that marriage involves several criteria that are found to exist cross-culturally and throughout time. For example, Hindu marriage has three main objectives such as Dharma, progeny and sexual pleasure. Individual happiness has been given the least importance. It is considered to be a sacrament, a spiritual union between a man and a woman in the social status of husband and wife. Marriage is culturally specific. The rules and regulations differ from one culture to another.


Marriage is the union of two people ( whether of the same sex or opposite sexes ), same-sex marriage is also known as gay marriage. It is the marriage between two people of the same biological sex and or gender identity. Legal recognition of same-sex marriage or the possibility to perform a same-sex marriage is sometimes referred to as marriage equality or equal marriage, particularly by supporters. The legalisation of same-sex marriage is characterised as “redefining marriage” by many opponents. The first laws enabling same-sex marriage in modern times were enacted during the first decade of the 21 century.


Traditionally, India has an identified same-sex unions to be a trans-rooted alien culture-bound syndrome and associated social disorder. Hence LGBT groups are working in the background for a step by step approach, required to tackle all the problems and rights of LGTB citizens in India. The previous focuses of these groups were to repeal section 377 of the Indian penal code to enact non-discrimination laws.




What is the dispute?

1. In July 2019, the Delhi High Court dismissed a legal challenge brought forward by advocate Tajinder Singh and Anurag Chauhan seeking directions to make rules and regulations to recognise same-sex marriages under the Hindu Marriage Act, 1955.

2. The present four petitions in the Delhi High Court have sought to declare that the acts governing the institution of marriage ought to apply to all couples, regardless of their gender identity and sexual orientation.

3. The petitioners have also sought to declare the denial of same-sex marriage was a denial of rights guaranteed under the constitution.


The four petitions :

1. Dr Kavita Arora and Anr. .v. Union of India

•Petitions filed in October 2020.

•petitioners: A lesbian couple, medical practitioners Kavita Arora and Ankita Khanna, represented by senior advocate Maneka Guruswamy and lawyers Arundhati Katju, Govind Manoharan, and Surabhi Dhar.

• The petition sought a declaration that the special Marriage Act,1954, ought to apply to all couples, irrespective of gender or sexual orientation. The petitioners also contended that the special Marriage act,1954 in denying recognition of same-sex marriages constitutes an infringement of Articles 14,15,19 and 21 of the Indian constitution.


2. Vaibhav Jain and Anr .v. Union of India

• petition filed in October 2020.

• petitioners: Two gay men, Vaibhav Jain and Parag Vijay Mehta, who married in Washington, D.C.

• The petition contended that the Foreign Marriage Act,1969, should be Perused to apply to same-sex relationships and that the same is unconstitutional to the extent it does not recognise such relationships.

3. Abhijit Iyer Mitra and ors. .v. Union of India

• petition filed in November 2020.

• petitioners: Abhijit Iyer Mitra, Gopi Shankar Madurai, Giti Thadani, and G. Ooravsi.

• The petition sought a declaration stating that section 5 of the Hindu Marriage Act, 1955, does not distinguish between homosexual and heterosexual couples, and the right of same-sex couples to marry should be recognised.


4. Udit Sood and Ors .v. Union of India and Anr.

• petition filed in February 2021.

• Petitioners: 3 men and a woman from the LGBTQ+ community represented by advocates Meghna Mishra and Tahira Karanjawala.

• The petition sought to declare that the Special Marriage Act, 1954 applies to any two persons who wish to marry, regardless of sex.


The fight for equality

The Delhi High Court set a hearing for the first three petitions on January 8, 2021. Due to the absence of a reply from the respondents, the court rescheduled the hearing for February 25, 2021.

On February 25, the Union Government, represented by the solicitor general Tushar Mehta, asked the Delhi High Court to dismiss the case. Respondents put forth the argument that a marriage is based on “age-old customs, Rituals, Practices, cultural ethos and societal values and thus there exists a legitimate state interest in preventing same-sex couples from marrying.

On may 24, 2021 the government asked the court to delay deliberations on the four petitions, stating nobody is dying because of the lack of marriage registration and that the government’s focus was on “urgent and immediate” pandemic related issues. The next hearing was set for July 6, 2021.

Conclusion

The universal law of Human Rights states that social norms, tradition, customs or culture cannot be used to curb a person from asserting his fundamental and constitutional rights. If we were to accept the justification, given to us by cultural views, public policy and social values, which are used to restrict a person’s right then there would have been no progressive legislation enacted in our country. Sati, dowry, child marriage and infanticides are practices derived from cultural beliefs but the government still took steps to prevent them. Based on the whole discussion on the aspect of same-sex marriage that it is should be legalised or not. This is more of a religious debate than a political one. Homosexuality is not an offence, it’s is just a way of the pursuit of happiness, a way to achieve sexual happiness or desire. There is absolutely no reason, apart from blind prejudice, which prevents two gay people from going through a civil ceremony that will give them the rights and securities which heterosexual couples enjoy.. aren’t we are living in an age that respects the individual’s right to choose isn’t India supposed to be the land of the free in our society people have branded homosexuals as queer. Yet homosexuality is new nor is it against the Indian culture it has always existed and with much lesser prosecution, that under section 377 of the IPC which is based on British offences against the person act.


What should be the right approach to deal with same-sex marriage the issues are quite vast and complex. However, the desirability and feasibility of such an approach remain to be ascertained. In any event, there is a growing conviction that our present method of criminalizing same-sex activity neither helps homosexuals nor protect society in general. Thus need to legitimate same-sex marriages to move forward in the direction of human rights.



Author : Sukhmani Kaur

Course : BA.LLB

Year : 2

Semester -4

Asian law college , Noida

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