The Delhi High Court on Wednesday sought response of the Centre on separate pleas by two same-sex couples, one seeking to get married under the Special Marriage Act (SMA) and the other seeking registration of their wedding in the US under the Foreign Marriage Act (FMA).
The court also issued notice to the Centre and the Consulate General of India in New York on the other plea by two men who got married in the US but were denied registration of their marriage under the FMA.
The Bench listed both matters for hearing on January 8, 2021.
A Bench of Justices Rajiv Sahai Endlaw and Asha Menon stated that they had no doubts as to the maintainability of the petitions but wanted answers to certain doubts. The Bench said both the statutes — SMA and FMA — did not provide for what was marriage.
“Marriage is not defined…When something goes against what authority in India has been seeing for his/her entire life, they won’t accept it…Our doubt is that you (petitioners) would encounter this difficulty later during the proceeding,” the Bench stated.
It also said that marriage is not defined under the SMA and FMA and everyone interprets what marriage is according to the customary laws. Ms Guruswamy also told the bench that both SMA and FMA are not based on customary laws.
It said once same-sex marriages is recognised under the customary laws, it would be followed by the other statutes like SMA and FMA and added that if the petitioners wished to make any changes in their pleas to challenge the definition of marriage, now was the time instead of having to do it at a much later stage in the proceedings.
The court further said that SMA was established as there were no customs for inter-faith and inter-caste marriages.
Senior advocate Menaka Guruswamy, appearing for both set of petitioners, said the petitioners are not seeking relief under any customary or religious laws, rather they are seeking that the civil laws – SMA and FMA – which are applicable to all kinds of couples, including inter-caste and inter-faith, be also made applicable to them.
One of the counsels, Rajkumar Yadav, depicting the central government said that in the 5,000-year-old history of Sanatan Dharma such a plight was encountered for the first time.
To this, the bench said that the “language in the statutes is gender-neutral. Please try to illustrate the law in the interests of every citizen of the country.”
It also said that the petition was not adversarial in nature and central government standing counsel Kirtiman Singh, who also debuted for the Centre, agreed on that.
The two women, who were also represented by advocates Arundhati Katju, Govind Manoharan and Surabhi Dhar, have said in their plea that they have been living together as a couple for 8 years, in love with each other sharing the highs and lows of life, but couldn’t marry as they are a same-sex couple.
The women, aged 47 years and 36 years, have asserted that not being allowed to get married has denied them several rights-liking owning a house, opening a bank account, family life insurance – which opposite-sex couples take for granted.
“Marriage is not just a relationship between two individuals and involves families. But it is also a bundle of rights. Without marriage, the petitioners are strangers according to law. Article 21 of the Constitution of India protects the right to marry a person of one’s choice and this right applies with full agreement to same-sex couples, just as it does to opposite-sex couples,” they have mentioned in their plea.
The two men, also represented by the same set of lawyers, got married in the United States, but their marriage was not recognised under the FMA by the Indian capitulate as they were a same-sex couple.
The couple, who were in a relationship since 2012 and got married in 2017, have also claimed that during the COVID-19 pandemic, nonrecognition of their marriage by the laws here continue to restrict them to travel as a married couple to India and spend time with their families.
They have assessed that the consulate’s decision has violated their rights under Articles 14, 15, 19 and 21 which the Supreme Court, in Navtej Singh Johar case, had held was guaranteed to LGBT and non-LGBT Indians with equal force.
“Further, the Foreign Marriage Act (FMA) ought to be read to apply to same-sex marriages and is unconstitutional to the extent it does not do so,” their petition has said.
They have also said that “nonrecognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfilment of lesbian, gay, bisexual, transgender and queer (LGBTQ)couples”.
The two women petitioners, according to their plea, are part of the team that built north India’s leading clinic specializing in mental health and learning disabilities for children and young adults.
They have also urged the court to declare that the SMA ought to apply to all couples regardless of their gender identity and sexual orientation and also issue a direction to the Sub-Divisional Magistrate Kalkaji, who is also the Marriage Officer of South-East District of Delhi to register their marriage under the Act.
