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What Is The Petition Demanding Rights For Same Sex Couples Under The Hindu Marriage Act (1955)?

Posted: September 17, 2020

4 members of the LGBTQIA+ community filed a PIL demanding equal rights to same-sex couples under the Hindu Marriage Act. Here’s what we know.

For the past few years, the LGBTQIA+ community is striving hard for their identity, sexuality, recognition and rights. There have been various events and verdicts that have proven to be a benchmark in the history of  LGBTQ+ community. This includes the 2018 verdict of Supreme Court which read down Section 377 of the Indian Penal Code.

Following this course of events and their fight for equality, four members of the community filed a PIL (Public Interest Litigation) on September 8, 2020. This petition demands rights for same sex marriage, and argues that the Hindu Marriage Act (1955) doesn’t differentiate between homosexual and heterosexual couples.

What is the Hindu Marriage Act of 1955?

The Hindu Marriage Act was enacted by the Parliament in 1955 to ‘amend and codify the law relating to marriage among Hindus.’ It reformed the Hindu law of marriage and was a milestone in the history of social legislation. The petitioners argued that the Act did not, at any course of time, mention that marriage was a union between a ‘Hindu man’ and  a ‘Hindu woman.’

The petitioners, Abhijit Iyer Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi, argued that homosexual couples should be included under the Act. They pointed at the Supreme Court’s verdict in 2018 which decriminalised homosexuality.

‘The non-recognition of the rights of gay couples, especially when their sexuality has been recognised as such as valid by the Hon’ble Supreme Court of India is violative of various provisions of the Constitution of India as well as various conventions that India as a sovereign state is signatory to,’ the petition read.

In the month of January, a similar petition was filed by a couple in Kerala, Nikesh Pushkaran and Sonu MS. It raised questions on the Special Marriage Act of 1954.

Why shouldn’t same sex couples have the same rights as others?

The advocate of the petitioners, Raghav Awasthi says that “In the 21st century, there is no reason that same-sex couples should not enjoy the same rights as others.”

One of the petitioners, Gopi Shankar M, a Tamil Nadu-based intersex activist pointed at the Madras High Court’s decision in 2019. The decision upheld marriage between a man and a transwoman as the word ‘bride’ in the Hindu Marriage Act also included transwomen.

“I want to marry my partner, too, and register our relationship,” says Gopi Shankar, who wants to marry and register their relationship. The petition also argues that denying the right to same sex marriage is the violation of Right to Life under Article 21 of the Constitution as the Right to Marry is a part of the Right to Life.

How are the people responding to this?

“Our law, society, values don’t recognise marriage – which is a sacrament – between a same sex couple,” said Tushar Mehta, Solicitor General of India. He is opposing the petition at the Delhi High Court. This statement is constantly making headlines across social media as the queer community and other people strongly condemned such a statement.

On the other hand, various people from the LGBTQIA+ community are also strongly opposing the petition as it grants the right to marry only to Hindus. Thus, excluding all the other communities. This petition also does not take into account inter-religious marriages and atheists.

The fight for rights should be all inclusive rather than a biased inclination towards any one religion. And the LGBTQIA+ community demands that the right to same sex marriage should be upheld regardless of the person’s religion or religious views.

Thus, with various debates and questioning happening around this issue, people are looking forward to the HC’s verdict. And they’re doing so with faith in the judiciary system of the country to uphold what is right and true.

Editors’ note: This is a developing story and the piece is about the petition filed and details of the same. It doesn’t reflect any personal views. 

Picture credits: Photo by Sharon McCutcheon on Pexels

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Anamika is an English literature student with a strong inclination towards feminist literature, feminist literary

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