The Allahabad High Court last week rejected a request by a same sex couple seeking recognition of their marriage, reports Bar and Bench.
The decision was rendered by Justice Shekhar Kumar Yadav while disposing of a Habeas Corpus petition filed by a mother seeking custody of her daughter who she alleged was forcibly and illegally detained by another woman.
On the Court’s previous direction, the Additional Government Advocate presented the daughter and the woman who allegedly detained her, before the Court. The two then informed the Court that they were both adults, who were in love and had married each other with mutual consent.
They also produced before the Court a matrimonial consent letter which showed their ages as 23 and 22 years. The couple informed the Court that they were adults, in sound mind and were very much in love. They said that they had married by mutual consent and without any fear.
Therefore, they requested the Court that their marriage be recognised so that they could present their life legally before society.
They also placed reliance on the decision of the Supreme Court in the case of Navtej Singh Johar v Union of India where two adults were given the freedom to be together with mutual consent.
The couple also underscored that the Hindu Marriage Act does not categorically oppose same sex marriage. Therefore, their marriage should be recognised.
They claimed that their fundamental rights would be compromised if they did not get their right to same sex marriage while placing reliance on the fact that more than 25 countries in the world had recognised same sex marriage.
However, the respondents raised an objection to the petitioner’s stand. It was stated that India was a country that ran according to Indian culture, religion and law where marriage is considered a sacred sacrament as opposed to a contract.
“At the time of marriage in India, Hindu men and women take an oath as witnesses to God and Agni that they will be involved in each other’s happiness and sorrow for life,” the State submitted explaining that in the absence of a man and woman, marriage could not be accepted in the Indian environment as it was beyond the Indian family concept.
It was further submitted that the Hindu Marriage Act 1955, Special Marriage Act 1954 and Foreign Marriage Act 1969 do not recognise same sex marriage. It was, in fact, pointed out that even amongst Muslims, Buddhists, Jains, Sikhs etc., same sex marriage was not recognized.
The respondents also relied on the 16 types of rites described in the Indian Sanatan Vidhi. They stressed that in the absence of a man and a woman, the sanskars could not be completed.
“In Hindu law, marriage is considered important, within which both men and women live together, produce children and take the human chain forward,” it was submitted.
Therefore, the State said that if the request of the two women were accepted by the Court, the same would be invalid under Indian culture, religion and law.
“It will have an adverse effect in various laws of India, which have been made keeping in mind the men and women,” said the respondents.
Considering the submissions, the Court denied the petitioners’ request and the Habeas Corpus petition was also disposed of.
“Keeping in view all the above circumstances, the request for same sex marriage is dismissed.”
