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A division bench of Chief Justice DN Patel and Justice Jyoti Singh today listed for February 3, a plea by journalist Swati Goel Sharma and author Sanjeev Newar, against seeking registration of same-sex marriages under Hindu Marriage Act, 1955. The Court said that the issue was being dealt with in a batch of petitions which are listed for hearing on February 3 and that it will hear the intervention application by Goel and Newar on the same date.

The application states that same-sex marriage registration must either be religion-neutral or permitted under a secular law only.

Filed in the name of the organisation Sewa Nyay Utthan Foundation, through Advocate Shashank Shekhar Jha, the application objects to various petitions seeking recognition to same sex marriages under the Hindu Marriage Act, 1955 only. 

Recently, a petition was also filed by two women married in Varanasi challenging provisions of the Hindu Marriage Act, 1955 in particular, for permitting marriage between a biological man and a biological woman only. 

Previously, a petition has also been preferred seeking recognition to same-sex marriages under the Hindu Marriage Act, 1955.

The present application objects to such singling out of Hindu Marriage Act, 1955 for recognition to same-sex marriages and states that such marriages should either be registered under a secular personal legislation like the Special Marriages Act or must be allowed under all religious laws such as Muslim Marriage law and Sikhs’ Anand Marriage Act, as well.

The petitioners state that such recognition must be made religion-neutral.

They point out that the Hindu Marriage Act, 1955 is "directly derived from Hindu dharmic scriptures such as Ved and Upanishads, where a marriage is defined as allowed between biological male and biological female only."

They further state that they have no objection if such marriages are registered under Acts other than the Hindu Marriage Act, 1955, such as the Special Marriage Act and Foreign Marriage Act, however, if they are allowed to be registered under the Hindu Marriage Act, 1955, then they must be allowed to be registered under all religions' personal laws.

They also state that before the Court decides in favour of same-sex marriages for Hinduism, wherein a marriage is considered a holy union, it must first consider systems where the marriage is merely a ‘civil contract’ such as Nikah.

The petitioners also state that before allowing registration of same-sex marriages for Hindus who have a more than 10,000-year old history, it must begin with newer faiths such as Islam (1400 years old), Christianity (2000 years old), and Zoroastrian (2500 years old) religions.

Background

Recently, the Delhi High Court issued notice on a plea by two women married in Varanasi, Uttar Pradesh, who have moved court challenging provisions of the Hindu Marriage Act for permitting marriage only between a biological man and a biological woman. (Nibedita Dutta & Anr vs Union of India)

The petitioners prayed therein that the Hindu Marriage Act, "insofar as it does not recognize a same sex Hindu customary marriage" be declared unconstitutional for being in violation of Articles 14, 15, 19 and 21.

They pray that alternatively, the Hindu Marriage Act be interpreted "inclusively and broadly so as to apply to any two Hindus who wish to marry thereunder, irrespective of their gender," so as to save it from the vice of unconstitutionality. 

Appearing for the Union of India Solicitor General Tushar Mehta has previously informed Court that the plea revolves purely around a question of law and pleadings are complete from their end, they are ready to argue the matter.

He has submitted that the Navtej Singh Johar judgment which has been relied upon by various petitioners merely decriminalizes same-sex marriages in India and does not provide for any recognition or right of registration to same-sex marriage partners.

He has further said on behalf of the Centre, "The law is clear, marriage implies a relationship between a biological man and a biological woman."

The Court has also been hearing pleas seeking recognition to same-sex marriages under the Hindu Marriage Act, Foreign Marriage Act and the Special Marriage Act, upon which the government has replied earlier stating that such recognition would result in “a complete havoc with the delicate balance of personal laws in the country”.

“Living together as partners and having sexual relationship by same sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two,” the Centre has stated in its reply earlier in the same-sex marriage pleas.

Cause Title: Abhijit Iyer Mitra vs Union of India & Ors