Mahima
Solicitor General Tushar Mehta, appeared for the Central Government this morning and informed the Delhi High Court that it has prepared its reply to the pleas seeking recognition of same-sex marriage and will file the same ‘during the course of the day’.
The Court today also noted that another related petition has been moved in and asked if the Centre’s reply would be common for all petitions in the matter. Mehta responded to the same by stating that since the issue is the same, it could be common to all.
However, he requested the liberty to file an additional affidavit if any new issue is presented in the new plea to address which the Court allowed. The court then directed the petitioners to submit their affidavits within two weeks of the Centre’s reply.
The request for an earlier date by the counsel for the petitioner, Senior Advocate Menaka Guruswamy prompted SG Mehta to enquire if there is any urgency. She informed the Court that there is an urgency to which SG Mehta replied that there are more urgent and genuine issues. He further added ‘urgency is always relative’.
In the previous hearing presided by a division bench of Justices Rajiv Sahai Endlaw and Amit Bansal allowed the extension sought by the centre to file its reply before adjourning the matter to today. After dates were given by the Court for the filing of counter-affidavit and rejoinders, the matter was posted for further hearing on 20th April.
Earlier SG Mehta had opposed the plea submitting, “Our culture and law don’t recognize the concept of same-sex marriages” and “As per law, a marriage is only between a husband and a wife”. The SG had also submitted that the culture of any country is codified in statutory provisions and unless several statutory provisions are altered the relief as prayed cannot be granted as the Court cannot alter several statutory provisions.
First petition, filed by members of the LGBTQ community Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi and Giti Thadani, reasons that the conception of marriage under the Hindu Marriage Act (HMA) allows for same-sex marriages.
The petitioner contended that the Hindu Marriage Act does not separate heterosexual from homosexual marriages if one were to go by how it is phrased under Section 5 of the Act which lays down that marriage can be performed between ‘any two Hindus’.
The plea also contended that non-recognition of same-sex marriage even after the recognition of sexuality is violative of not only the Indian Constitution but also various conventions India is a signatory to.
Another plea filed by two mental health professors, Kavita Arora and Ankita Khanna, who tried to get married in September 2020 under SMA but the appropriate court officer refused to do so., reasoned that the registration of same-sex marriages should be possible under the Special Marriage Act (SMA) as refusal of recognition is discriminatory on the grounds of sexual orientation which is impermissible under Article 15 of the Indian Constitution.
The petition to recognise same-sex marriage under the Foreign Marriage Act (FMA) has been filed by two men, Vaibhav Jain and Parag Vijay Mehta who got married in USA in 2017 but their request to get their marriage registered under FMA got refused. They raised similar arguments regarding discrimination and violation of constitutional protections.
SG Tushar Mehta maintained that the Supreme Court’s 2018 judgment in Navtej Singh Johar’s case was solely to decriminalise consensual homosexual activities, ‘nothing more, nothing less’. The bench of Chief Justice DN Patel and Justice Prateek Jalan had then advised the petitioners, to try getting their marriages registered and if in case they were denied, they could approach the court with their grievances.