On Friday, the High Court of Delhi is likely to hear a PIL that seeks a direction that homosexual couples have the right to get married under the 1955 Hindu Marriage Act, arguing that barring such unions was a violation of their constitutional rights.

The Public Interest Litigation, filed on Sept 8 by 4 members of the LGBTI (lesbian, gay, bisexual, transgender, intersex) community & listed before a bench of Chief Justice of the Delhi HC DN Patel & justice Prateek Jalan, said that nothing in the Hindu Marriage Act mandated that a marriage take place only between a Hindu man & a Hindu woman.

The plea pointed out that in 2018, the Top Court read down Section 377 of IPC, which criminalized homosexuality.

The plea said that “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".

This is the 2nd plea to be filed on the issue of same-sex marriage rights. In Jan, a couple in Kerala – Nikesh Pushkaran & Sonu MS – filed a plea in the High Court of Kerala challenging the Special Marriage Act.

The Delhi High Court plea was filed by 4 people – Abhijit Iyer Mitra, Gopi Shankar, Giti Thadani & G Oorvasi.

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

“Equality is important. We have people from the diverse LGBTI communities who are refused by registrars to accept or register their marriage ceremonies. I want to marry my partner, too, & register our relationship,” said Gopi Shankar, one of the petitioners.

Shankar pointed to a 2019 Madras high court judgment that upheld the marriage between a man & a transwoman, saying that the word ‘bride’ in the Hindu Marriage Act also included a transwoman.

“The text of the law does not, on a plain reading, exclude same-sex marriages. However, in practice the law has been understood to exclude them. The court, however, should recognise same-sex marriages not merely as a legislative lapse, but as a positive fact,” said Saurabh Kirpal, an Apex Court Lawyer who appeared for the petitioners in the Navtej Johar case, which led to decriminalisation of homosexuality in 2018. 

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