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Indian legal battle over same-sex marriage

Federal government tells court that marriage is permissible between a biological man and woman

Indian legal battle over same-sex marriage

Activists celebrate after the Supreme Court of India decriminalized homosexuality in New Delhi on Sept. 6, 2018. (Photo: UCA News/IANS)

Church leaders in India will be keenly watching the outcome of a batch of legal pleas seeking recognition and registration of same-sex marriages posted for a final hearing in Delhi High Court on Nov. 30.  

Solicitor General Tushar Mehta, appearing in the matter for the federal government on Oct. 25, said that "marriage" is a term associated with heterosexual couples.

“The law as it stands ... marriage is permissible between a biological man and biological woman,” he told the court during a hearing of cases filed by same-sex couples seeking registration of marriages of LGBTQIA+ couples under Indian laws.

Archbishop Emeritus Albert D’Souza of Agra told UCA News: “We appreciate and welcome the federal government's stand because homosexuality is unnatural and the Church does not accept it.” 

Archbishop D’Souza, who is a member of the Catholic Bishops’ Conference of India’s Office for Doctrine, added: “The Church believes in the natural, age-old practice of families comprising men, women and children, and will always stand by it.”

Abhijit Iyer Mitra, one of the petitioners in Delhi High Court, has pleaded that same-sex marriages were not possible even though the Supreme Court of India decriminalized consensual homosexual acts in September 2018.

She said it was unfortunate that a section of society still treats same-sex marriages as taboo

The Supreme Court decriminalized homosexuality between consenting adults by declaring the penal provision which criminalized gay sex as “manifestly arbitrary.”

The other petitioners included those seeking recognition of same-sex marriages under the Foreign Marriage Act, 1969, and the Special Marriage Act, 1954, besides seeking recognition for a foreign-origin spouse of an Overseas Citizen of India (OCI) cardholder.

Advocate Karuna Nundy, appearing for one of the couples, said that her clients got married in New York some two years ago and since the country’s citizenship law was silent on the gender and sexuality of the spouse, her client should be declared eligible to apply as a spouse for an OCI card.

In another case, advocate Saurabh Kirpal, representing another couple, said that while the Supreme Court judgment does not expressly allow same-sex marriage, the inevitable implication in the constitutional matter favors recognizing it.

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Anjali Gopalan, founder and executive director of Naz Foundation, which advocates for the inclusion of LGBTQIA+ people in mainstream society, said that they were “disappointed by the stand taken by the federal government but will continue their demand to recognize same-sex marriages.”

She said it was unfortunate that a section of society still treats same-sex marriages as taboo.

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