The Delhi High Court Wednesday sought the Centre’s response on separate pleas by two similar intercourse couples, one seeking to get married beneath the Special Marriage Act (SMA) and the opposite seeking registration of their wedding ceremony within the US beneath the Foreign Marriage Act (FMA).
A bench of justices R S Endlaw and Asha Menon issued discover to the Centre and the Delhi authorities seeking their stand on the plea by two girls seeking to get married beneath the SMA and difficult provisions of the statute to the extent it doesn’t present for similar intercourse marriages.
The court docket additionally issued discover to the Centre and the Consulate General of India in New York on the opposite plea by two males who bought married within the US however have been denied registration of their marriage beneath the FMA. The bench listed each issues for listening to on January 8, 2021.
During the listening to, the bench mentioned it has no doubts concerning maintainability of the petitions, however added that the idea of marriage emanates from the customary legal guidelines which don’t recognise similar intercourse marriages.
It additionally mentioned that marriage shouldn’t be outlined beneath the SMA and FMA and everybody interprets what a marriage is in line with the customary legal guidelines. It mentioned as soon as similar intercourse marriages is recognised beneath the customary legal guidelines, it will be adopted by the opposite statutes like SMA and FMA and added that if the petitioners wished to make any modifications of their pleas to problem definition of marriage, now was the time as an alternative of having to do it at a a lot later stage within the proceedings.
The court docket additional mentioned that SMA was enacted as there have been no customs for inter-faith and inter-caste marriages. Senior advocate Menaka Guruswamy, showing for each set of petitioners, mentioned the petitioners aren’t seeking reduction beneath any customary or non secular legal guidelines, somewhat they’re seeking that the civil legal guidelines — SMA and FMA — that are relevant to all types of couples, together with inter-caste and inter-faith, be additionally made relevant to them.
Guruswamy additionally advised the bench that each SMA and FMA aren’t primarily based on customary legal guidelines. One of the counsels, Rajkumar Yadav, representing the central authorities mentioned that within the 5,000 12 months previous historical past of Sanatan Dharma such a state of affairs was being confronted for the primary time.
To this the bench remarked, that the “language in the statutes is gender neutral. Please try to interpret the law in the interests of every citizen of the country.”
It additionally mentioned that the petition was not adversarial in nature and central authorities standing counsel Kirtiman Singh, who additionally appeared for the Centre, agreed that it was not.
The two girls, who have been additionally represented by advocates Arundhati Katju, Govind Manoharan and Surabhi Dhar, have mentioned of their plea that they’ve been residing collectively as a pair for Eight years, in love with one another sharing the highs and lows of life, however unable marry as they’re a similar intercourse couple.
The girls, aged 47 years and 36 years, have contended that not being allowed to get married has denied them a number of rights — liking proudly owning a home, opening a checking account, household life insurance coverage — which reverse intercourse couples take as a right.
“Marriage is not just a relationship between two individuals – it brings two families together. But it is also a bundle of rights. Without marriage, the petitioners are strangers in 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 force to same-sex couples, just as it does to opposite-sex couples,” they’ve contended of their plea.
The two males, additionally represented by the identical set of attorneys, have been married within the United States, however their marriage was not registered beneath the FMA by the Indian consulate as they have been a similar intercourse couple.
“The Indian consulate would have registered the marriage of any similarly placed opposite-sex couple,” they’ve contended.
The couple, who have been in a relationship since 2012 and bought married in 2017, has additionally claimed that through the COVID-19 pandemic, non-recognition of their marriage by the legal guidelines right here continues to disentitle them to journey as a married couple to India and spend time with their households.
They have contended that the consulate’s resolution has violated their rights beneath Articles 14, 15, 19 and 21 which the Supreme Court, in Navtej Singh Johar case, had held was assured to LGBT and non-LGBT Indians with equal pressure.
“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 mentioned.
They have additionally mentioned 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 girls petitioners, in line with their plea, are half of the group that constructed north India’s main clinic specializing in psychological well being and studying disabilities for youngsters and younger adults.
They have sought that the SMA be declared as unconstitutional to the extent that it doesn’t permit solemnisation of marriage between similar intercourse couples.
They have additionally urged the court docket to declare that the SMA ought to use to all couples regardless of their gender id and sexual orientation and likewise subject a course to the Sub-Divisional Magistrate Kalkaji, who can also be the Marriage Officer of South East District of Delhi to register their marriage beneath the Act.