The Delhi High Court is set to decide the matter of pending importance regarding the legalization of same-sex marriages, on November 30, on its final hearing on the issue.
A slew of petitions was filed before the Court, which included that of two same-sex couples seeking a recommendation to declare same-sex marriage valid under special, Hindu, and foreign marriage laws. The first petition, being filed by Abhijit Iyer Mitra and others, seeks clarity on the issue of the legality of same-sex marriages, which is not allowed although there has been decriminalization of consensual homosexual acts. The other petition is filed by two men who were married in the US but were denied registration of marriage under the Foreign Marriage Act (FMA ).
Until 2018, homosexuality was considered a crime in India. However, in the month of September 2018, the Supreme Court, in the case of Navtej Singh Johar vs Union of India, taking a bold and decisive step, decriminalized Section 377, an archaic law, granting much freedom to the LGBTQIA + community ( Lesbian, Gay, Bisexual, Trans, Queer, Intersex, Asexual). While the dignity of the same-sex couples was rectified and improved as per the judgment, it still lacked a complete abnegation of the guilt as it did not yet allow for the marriage of same-sex couples akin to the rights of heterosexual couples in India.
The highlight of the current times relating to the issue was the airing of the commercial of the Dabur company in which two women were shown fasting for each other on Karva Chauth. It raised an uproar among the conservative sections of the society resulting in the backing off of the ad by the company and an apology letter to its audience. The contention around this thorny issue keeps the interests of queer rights in the bush.
The opportunity now is on the table of the Delhi High Court to observe the matter and come upon a suitable conclusion. The arguments of the petitioners are that the Navtej Johar judgment brings about a positive and negative obligation on the State. The negative is ‘non-discrimination’ under Article 15 of the Constitution. Whereas the positive obligation on the State ensures the right to choose a marital partner. Counsel for the Government, Solicitor Tushar Mehta appeared before the Court and argued that ‘spouse’ meant husband and wife and marriage was permissible between a biological man and biological woman only.
The countries like Sweden, the United States, Thailand were the recent countries to grant same-sex marriages a legal status. India must take a leaf out of the book in order to grant a special place to the same-sex couples in a plea to enjoy their freedom and class uninhibited.