Plea in Delhi HC opposes legalisation of same-sex marriages under Hindu Marriage Act

At least eight petitions are pending before the court seeking legalisation of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act, the Foreign Marriage Act

After a number of petitions were filed in the Delhi High Court for legalisation of same-sex marriages in India, an application has been moved before the court contending that the prayer seeking registration of same-sex marriages under the Hindu Marriage Act is not only against the system of Hindu marriages but will also impact the inheritance, adoptions, and religious ecosystem of Hindu Society.

The division bench of Chief Justice D N Patel and Justice Jyoti Singh Friday listed the intervention application moved by Sewa Nyaya Utthan Foundation for hearing along with the main matter which will be heard on February 3.

At least eight petitions are pending before the court seeking legalisation of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act, the Foreign Marriage Act and a declaration that the right to legal recognition of same-sex marriage is a fundamental right under Articles 14, 15, 19 and 21 irrespective of a person’s gender, sex or sexual orientation.

The NGO in its application has said that marriage ceremony among Hindus is religiously significant and under the Hindu customs, two people of the opposite sex can marry to give “sanity” to the family system and “purpose of legitimacy” to children. The marriage or ‘vivah’ is “not a contract but a religious activity”, it has said further.

“Any attempt to tinker with Hindu Marriage Act in a way that it affects the age-old harmless beliefs of Hindus will be a direct intrusion by secular state into the religious right of Hindus that is guaranteed by Constitution,” reads the application.

The NGO has argued that the petition for recognition of same-sex marriage under the Hindu Marriage Act is not reasonable when at the same time it is not permitted under the marriage laws pertaining to other religions. “Any change in marriage procedures must either be applicable for all citizens of India irrespective of faith in spirit of the secular state, or be restricted only to those forms of marriage that are considered not a religious ritual/sanskar but a civil contract as per Indian Contracts Act,” it has said.

Seeking dismissal of the petitions seeking same-sex marriages, the Centre in February in a written reply before the court had argued that a marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values” and that living together as partners and having sexual relationship by same-sex individuals is “not comparable” with the “Indian family unit concept” of a husband, wife and children. It also said that there exists a “legitimate state interest” in limiting the recognition of marriage to persons of opposite sexes only.

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