A plea came up before the Delhi High Court on Friday, December 3 seeking that same sex marriage not be permitted under the Hindu Marriage Act as in Hinduism, tying of nuptial knot is allowed only between a man and woman since times immemorial. The plea argued that any changes such as inclusion of same sex marriage in the Customary Law are much easier, convenient and practical in marriages which are a type of contract between the partners as they are very remotely based on religion and more generic in nature. Marriages in societies like Hindu are very much part of their religion and derived and associated with their divine entities as well as religious texts and thereby hold significant sentimental values, it said.
A bench of Chief Justice D N Patel and Justice Jyoti Singh listed the application by Sewa Nyaya Utthan Foundation seeking to be impleaded and heard in the main petition for recognition of same sex marriages in New Delhi for February 3, when all the batch matters will be heard.
The application said the petition seeking same sex marriage under the Hindu Marriage Act is not only against the religious system of Hindu Marriage but is also an act to bring changes abruptly without any reason and this change will impact other aspects like inheritance, adoptance and religious ecosystem of the Hindu society that are critically hinged on the religious sanskar of â€˜vivah'.
The organisation, through Sanjeev Newar and Swati Goel Sharma, said such marriages should either be registered under secular law like Special Marriage Act or must be allowed under all religious laws such as Muslim Marriage Law and Sikhs' Anand Marriage Act and that it must be made religion-neutral.
As per vedas (the sourcebook of Hinduism), marriage happens only between a male and a female to fulfil certain worldly and religious duties. In fact, most veda mantras recited during Hindu vivah or describing the ritual of marriage refer to a biological male and a biological female. This has been the practice since times immemorial across almost all Hindu sampradayas without any variation in essence, said the application, filed through advocate Shashank Shekhar Jha.
The application was filed in the pending petition of Abhijit Iyer Mitra who has contended that marriages between same sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise same sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).
The application said that as per Hinduism, marriage is not a contract but a religious activity and any attempt to tinker with the HMA in a way that it affects the age-old harmless beliefs of Hindus will be a direct intrusion by a secular state into religious rights of Hindus that are guaranteed by the Constitution.
It said any approval regarding same sex marriage under HMA and not in other Personal Laws existing in India will not only discriminate people from LGBT community on the basis of religion but will also be against the Principle of Secularism mentioned in the Preamble of Indian Constitution.
The HMA applies to everyone who belongs to any of the forms or developments of Hindu including Virashaiva, Lingayat, Brahmo, Prarthana, Arya Samaj, Buddhist, Jain and Sikhs, it said.
It contended that the petition for same sex marriage under the HMA is not reasonable at the time when the same is not permitted in the comparatively newer religions under their Personal Laws including Indian Christian Marriage Act, The Parsi Marriage and Divorce Act, Muslim Personal Law (Shariat Application Act) and Anand Marriage Act.
In the main petition, the central government has opposed same-sex marriage on the ground that marriage in India is not just a union of two individuals but an institution between a biological man and woman. It has also said that judicial interference will cause "complete havoc with the delicate balance of personal laws".
Solicitor General Tushar Mehta, representing the Union government, had earlier argued that a spouse' means either husband or wife and marriage' is a term associated with heterosexual couples and there was no need to file a specific reply regarding the Citizenship Act.
He had said there was some misconception of petitioners regarding the Supreme Court's verdict decriminalising consensual homosexual acts.