Applicants Abhijit Iyer Mitra and Delhi-based Gita Thadani along with Madurai-based Gopi Shankar M and G Oorvasi told a bank of Chief Justice DN Patel and Justice Prateek Jalan that Section 5 of the 1956 Hindu Marriage Act provides that a marriage may be to be solemnized between two Hindus and thus there can be no objection to same-sex marriages between two Hindus of the LGTBQ community.
Same-sex marriage is against the laws: SG
The applicants sought a statement that since Section 5 of the Hindu Marriage Act, 1956, does not distinguish between homosexual and heterosexual couples, the right of same-sex couples to marry should be recognized under the Act.
But the Center, through attorney general Tushar Mehta, registered its opposition to the petitioners’ request. He said there were no instructions from the government on specific issues raised by the applicants. However, he said he could argue that same-sex marriage was contrary to some criminal and civil laws that recognize marriage only between biological men and women.
He said India’s social norms and cultural ethos were codified in legal laws, such as the forbidden degrees of intercourse and sapinda marriages, and added that the two conditions had different criteria for a man and a woman to enter into a marital alliance. In a same-sex marriage, who will be the man and who will be the woman to bind this legal status, he asked. SG said there were different age criteria for men and women in a marriage and asked how it would be implemented. In the case of domestic violence in a same-sex marriage, who would be the woman to exercise her rights under the 2005 Law on the Protection of Women from Domestic Violence, he asked.
Mehta also cited IPC Section 498A, which punishes a man and his relatives for inflicting mental and physical torture on a woman to a prison sentence of up to three years. Judicial interpretation of the laws also provides that if a woman commits suicide or dies from an unnatural death within seven years of marriage, then cruelty will be presumed and the matter will be investigated. He drew HC’s attention to problems in enforcing this provision in a same-sex marriage.
He said at the moment, he could think about these legal complexities that could arise if same-sex marriage was legalized and said since it would require changes in many criminal and civil laws, it would be best to leave this issues to be decided by Parliament through debate.
When the jeweler asked SG if the Center would present evidence in response to the petition, he said, The issue raises clear questions of the law, which I am pointing out. I will present a note. The questions of the law do not require the raising of evidence at this stage. HC acknowledged that all over the world, things were changing even if the position in the law could be different and may or may not be applicable to India.
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