Bid to win marriage equality in India gains pace as Delhi High Court joins cases

The Delhi High Court has joined up separate legal cases appealing for India to recognize same-sex marriage under the Hindu Marriage Act, the Special Marriage Act and the Foreign Marriage Act.

It’s another step towards the court ruling on whether same-sex couples can marry in the world’s largest democracy.

While the Delhi High Court only hears appeals for part of India, the ruling will likely affect the whole country. Under Indian law, state high court rulings apply nationwide unless another high court has ruled the opposite way. It would take India’s Supreme Court to overrule them.

Advocate Ragav Awasthi, representing the LGBT+ petitioners, told the court that the language in the Hindu Marriage Act is gender neutral. Therefore, he argued, it should apply to same-sex marriages as well.

Likewise lawyers arguing the case around the Foreign Marriage Act have also argued the legislation is phrased in a gender-neutral way.

India has separate marriage legislation for major religious groups – Hindu, Muslim, Christian and Parsi. Meanwhile the Special Marriage Act can be used by anyone and the Foreign Marriage Act recognizes marriages outside India when one of the couple is Indian.

But the willingness of the Delhi High Court to hear the cases together indicates it believes the same issues are at stake.

Meanwhile the court has told the petitioners to create a list of people harmed by the marriage ban and ask them to state their case to the court.

The judges said: ‘If there are any aggrieved persons, they can come.’

33million lives affected

The New Delhi cases are not the only ones to be demanding marriage equality.

A same-sex couple from the southern Indian state of Kerala, Nikesh and Sonu, also have a case pending in Kerala’s High Court.

Campaigners argue that India’s failure to allow same-sex marriage violates LGBT+ people’s right to own and inherit property, include their same-sex partners on hospital and insurance forms, and have their relationships recognized.

If the cases are successful, it will be a huge breakthrough, changing the lives and social status of India’s 33-million LGBT+ population.

So far, India’s Solicitor General Tushar Mehta is opposing the LGBT+ petitioners. He said: ‘Our culture and law don’t recognize the concept of same-sex marriages.’

But India has previously proved its constitution can be used to win LGBT+ rights. Two years ago, India’s Supreme Court struck down a colonial-era law that had criminalized gay sex.

And the Delhi High Court has a track record in this area too. It had previously struck down the gay sex law in 2009.

Technically that made gay sex legal until 2013, when the Supreme Court overruled its decision. But then a larger bench of Supreme Court justices re-examined the issue in 2018, ruling in LGBT+ people’s favor.

The battle for marriage equality may still prove a long one in India. But with the judges holding the next hearing on 8 January 2021, next year could prove decisive.