Right of same-sex marriage should be recognized under Hindu Marriage Act: PIL in Delhi HC

Despite the Supreme Court decriminalising homosexuality in the country, same-sex marriage is still not being allowed under the provisions of the Hindu Marriage Act, said a public interest litigation (PIL) filed in the Delhi High Court.

The public suit filed earlier this week urged to issue a declaration to the effect that since Section 5 of the Hindu Marriage Act of 1956 does not distinguish between homosexual and heterosexual couples, the right of same-sex couples to marry should be recognized under the said Act.

The PIL, filed by advocates Raghav Awasthi and Mukesh Sharma, said that the petitioners have filed the petition for enforcement of fundamental rights granted under the Constitution of India.

The petition said that as of now, the law sees the members of the LGBT community as individuals only and not as couples. It said that the LGBT community members are forced to suppress their feelings of getting married to the person of their own choice.

The plea raised the issue that denying the LGBT community the option to marry is absolutely discriminatory and treats them a second class citizens. Homosexual couples should have access to the same benefits enjoyed by the Heterosexual married couples, the petition said.

It said that there is nothing in the Hindu Marriage Act, 1956 that mandates that marriage should take place only between a Hindu man and a Hindu woman and added that Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’.

“That it is further submitted that despite the fact that there is absolutely no statutory bar under the Hindu Marriage Act of 1955 and the Special Marriage Act of 1956 against gay marriage, the same are not being registered throughout the country and also in Delhi,” the plea said.

“As a result of the same, there are many benefits that would otherwise be available to heterosexual married couples that are not available to them,” it added.

The plea said that the petition has been filed for the benefit of homosexual and transgender persons, which it claimed constitute around five to ten percent of the country’s population.

The prohibition of the marriage of LGBT people on the basis of sexual orientation and gender identity is absolute discrimination towards them and is also violative of the Right to Equality as granted by the Constitution of India, the plea said.

It said that now a well-admitted fact that the Right to Marry is a part of the Right to Life under Article 21 of The Constitution of India.

“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,” the plea said.

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