We Decriminalised Homosexuality, It’s Only Logical that We Legalise Same-Sex Marriage

Social Commentary

We Decriminalised Homosexuality, It’s Only Logical that We Legalise Same-Sex Marriage

Illustration: Shruti Yatam

Two years after a landmark ruling declared that homosexuality was legal in our country, the Delhi High Court is hearing two pleas on why the Special Marriage Act and the Foreign Marriage Act should be interpreted to also apply to the marriages of same-sex couples.

On Wednesday, while hearing pleas filed by two couples — one seeking to get married under the Special Marriage Act, and the other seeking the registration of their US wedding under the Foreign Marriage Act — the HC sought the Centre’s response on the issue.

The bench of Justices Rajiv Sahi Endlaw and Asha Menon also noted that age-old inhibitions have to be shed, after one of the counsels for the Centre, Rajkumar Yadav submitted that this situation has not arisen in 5,000 years of Sanatan Dharma.

“The laws are gender-neutral,” Justice Menon said. “You please try to interpret the law for the citizens of Sanatana Dharma in the country. This is not adversarial litigation… This is for the right of every citizen of the country,” she added, in comments that are being hailed on Twitter as another potential win for the LGBTQ community in India.

Senior Advocate Menaka Guruswamy, who argued on behalf of the petitioners, also left an impact with her strong arguments. “We would like to be recognised as full human beings,” Guruswamy said before the bench.

With regard to the first couple, who sought to be recognised as married under the Special Marriage Act, Guruswamy told the court that when they approached the concerned sub-divisional magistrate to apply for marriage, they were refused entry into the building. “Only their lawyer was told that since they were a same-sex couple they could not marry,” the senior advocate said.

On the plea of the second couple, two men who were recently wedded in New York, Guruswamy said they were denied the registration of their marriage by the Indian Consulate in New York, on the basis of their sexual orientation alone. She reminded the court of a previous Supreme Court ruling, which had ruled out discrimination on the grounds of orientation, and had underscored the right to choose one’s partner.

When asked if any appeal was moved before the government challenging these bodies, Guruswamy said the petitioners were not allowed such an opportunity. “This is what it means to be right-less,” she was quoted as saying.

The advocate also went on to speak about same-sex couples do not share the same rights as married couples with regard to buying a house, availing of life insurance policies, taking loans, or having a bank account. Again she referred to an SC ruling that had said the purpose of marriage goes beyond mere procreation.

There is massive support for same-sex marriage in the country. #YesHomoVivah was among the top trends on Twitter today.

The court has now posted the matter for further hearing on January 8, 2021. But it’s clear for now that today’s hearing has been a small but encouraging step towards ensuring equality and justice for Indians of all orientations.