KOCHI: A gay couple has approached the

seeking a court declaration that homosexual couples are entitled to get their marriages registered.

The couple has also to declare as unconstitutional a provision in Special Marriage Act that allows solemnisation of marriage only between a man and a woman.

asked the governments to respond after considering during admission hearing a petition (WP-C No. 2186/2020) filed by Nikesh PP and Sonu MS through advocate George Varghese Perumpallikuttiyil. The court has now sought the views of the central and state governments.

After getting married in a secret ceremony in September last year, the couple decided to solemnise and register their marriage as per Special Marriage Act as religious and temple authorities were not willing to conduct such a ceremony, the petition said.

“It is submitted that the petitioners had turned to this country’s secular law and its Constitution after being discriminated by the religion and culture and the stereotypical homophobia that they carry. To petitioners’ utter shock, the

and its provisions are found to be discriminatory as well because the Act recognises only marriages between persons belonging to opposite sex alone,” the couple’s plea stated.

Section 4 of the Act has a heterosexual undertone as it portrays marriage as an affair between a male and a female or between bride and bridegroom. The forms appended to schedule number 2 and 4 of the Act all carry heterosexual nomenclature, the petitioners point out. The forms prescribe the formats for notice of intended marriage, declarations to be made by parties to the marriage, and the certificate of marriage. Thus, the statute in effect prevents a homosexual from applying for solemnising or registration of marriage, it is alleged.

They suffered public humiliation after they disclosed their love for each other. Internet trolls and other homophobic elements in the society attacked them. But greater is the insult and indignity suffered by the petitioners at the hands of law that refuse to recognise their union, causing immense pain and agony, the couple stated in the petition.

Institution of marriage affords certain rights and privileges in the society and homosexual couples are denied the enjoy similar rights and privileges, the petition said. Being married carries with it the right to maintenance, right of inheritance, a right to own joint bank accounts, lockers, nominate each other in insurance, pension, gratuity, etc. All these are unavailable to the petitioners due to their exclusion from the institution of marriage, said the plea.

Through the 2018 judgment (

Vs. Union of India), the Supreme Court recognised and declared that a person has the right to sexual identity and be treated with dignity for that identification. Any law that fails to protect one’s self-determination of sexual identity and treat that identity with dignity disrespects individual choice. Thus, it is irrational, manifestly arbitrary, and violates Article 14 (right to equality), the petitioners have contended before the court.

Non-recognition of marriage among homosexuals also violates the right against discrimination (Article 15) and is derived from majoritarian morality, the petition said. Equality would remain a distant dream for homosexuals if the law doesn’t allow all the civil liberties enjoyed by heterosexuals for the homosexuals as well. Anything less would be grossly discriminatory and in violation of right to equality and equal protection of law, the petitioners have argued.