New Delhi: The Delhi High Court Wednesday heard petitions filed by two same-sex couples, demanding a direction for registration of their marriages.
Appearing for the petitioners, senior advocate Menaka Guruswamy made a vehement plea for the couples to be “recognised as full human beings”.
The petition demanded that the Special Marriage Act, 1954 and the Foreign Marriage Act, 1969, which provides for “marriages of citizens of India outside India”, be interpreted to also apply to marriages of same-sex couples.
A bench comprising Justice Rajiv Sahai Endlaw and Justice Asha Menon issued notice to the central government and the Delhi government, seeking their responses. The matter will next be heard on 8 January 2021.
During the hearing, advocate Rajkumar Yadav, appearing for the central government, told the court this was a “peculiar situation” and such a situation has now arisen “in the 5,000 years of Sanatan Dharma”.
Justice Menon, however, shot back saying: “The laws are gender-neutral. Please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not an adversarial litigation. This is for the right of every citizen of the country.”
Guruswamy also referred to the Supreme Court judgments in the 2012 Justice K.S. Puttaswamy (right to privacy) case and the 2018 Navtej Singh Johar case, both of which had ruled against discrimination on the grounds of sexual orientation.
She then asserted, “I have seen the high court protect multiple couples who were put at jeopardy because of inter-caste marriages, inter-faith marriages… I am seeking the same protection… Multiple judges have said that sexual orientation cannot be grounds for discrimination.”
Also read: India’s Constitution is ready for gay marriage. Are India’s society and courts?
‘Petitioners are like any other couple you might meet’
One of the petitions was filed on 5 October by two Delhi-based mental health professionals, Dr Kavita Arora and Ankita Khanna. According to the petition, they have been living together for the last 8 years.
“The petitioners are like any other couple you might meet, except they are both women,” the plea stated.
The couple tried to get married last month and approached the marriage officer (the SDM, south-east Delhi, Kalkaji) seeking solemnisation of their marriage under the Special Marriage Act. The plea, however, submitted that the officer refused to register their marriage because they are a same-sex couple.
It, therefore, stated that because of exclusion of same-sex couples from the Special Marriage Act, “myriad legal rights and protections in matters of succession, taxation, insurance, maintenance, pension, health and marital privileges… are unavailable to unmarried couple”.
They demanded registration of their marriage as well as a declaration that the Special Marriage Act is unconstitutional as long as it does not provide for solemnisation of marriage between a same-sex couple.
The second petition
The second petition was filed earlier this month by US-based Vaibhav Jain and Parag Mehta, demanding registration of their marriage under the Foreign Marriage Act. While Jain is an Indian citizen, Mehta is an Overseas Citizen of India.
According to the petition, two of them have been in a relationship since 2012 and were married in Washington that year in a court ceremony officiated by Justice Sri Srinivasan, Chief United States Circuit Judge for the US Court of Appeals of District of Columbia Circuit.
Following the court registration, the petitioners also had a traditional Jain wedding in March 2019 and a reception in Delhi in November 2019. They then approached the Indian Consulate in New York in March this year, seeking registration of their marriage under the Foreign Marriage Act.
However, they were refused registration on the ground that they are a same-sex couple. They have, therefore, now approached the high court, demanding registration of their marriage.
Their petition stated that the Foreign Marriage Act should be read to recognise marriages between consenting adults irrespective of the gender and sexual orientation of the parties.
The high court is hearing another petition demanding marriage rights for the gay community under the Hindu Marriage Act, 1955. This plea has been filed by four members of the LGBTQ+ (lesbian, gay, bisexual, transgender, queer, and others) community.
Also read: ‘Same-sex marriage not a part of our culture’, says top govt lawyer, opposes plea in Delhi HC
I think this question needs to be referred to the constitutional bench of the Supreme court. This demand, though a large section of the society might oppose, is in accordance with the constitution of India and also the recent judgement on right to privacy.