The Delhi High Court today requested the Centre’s response to separate requests from two same-sex couples, one seeking to marry under the Special Marriage Act (SMA) and the other requesting the ‘registering their marriage in the United States under the Foreign Marriage Act (FMA). .
A bench of Judges RS Endlaw and Asha Menon issued an opinion to the Center and the Delhi government requesting their position on the plea of two women seeking marriage under the SMA and challenging the provisions of the statute insofar as it does not not expect the same sex. the marriages.
The court also notified the Center and the Indian Consulate General in New York of the other plea of two men who married in the United States but were denied registration of their marriage under the FMA. .
The bench listed the two cases for a hearing on January 8, 2021.
During the hearing, the bench said it had no doubts about the maintainability of the petitions, but added that the concept of marriage emanates from customary laws which do not recognize same-sex marriages.
He also said that marriage is not defined in the SMA and FMA and that everyone interprets what a marriage is according to customary laws.
He said that once same-sex marriages are recognized under customary laws, he will be followed by other laws like the SMA and FMA and added that if the petitioners wish to make changes to their pleas to challenge the definition of marriage, now was the time. to have to do this at a much later stage in the proceedings.
The court added that the SMA was enacted because there were no customs for interfaith and inter-caste marriages.
Senior lawyer Menaka Guruswamy, appearing for both groups of petitioners, said the petitioners were not seeking redress under customary or religious laws, but rather civil laws – SMA and FMA – which apply to all types of couples, including inter -cast and interfaith, should also be made applicable to them.
Ms. Guruswamy also told the judiciary that the SMA and FMA are not based on customary law.
One of the councils, Rajkumar Yadav, representing the central government, said that in the 5,000-year history of Sanatan Dharma, such a situation arose for the first time.
To this, the bench remarked that “the language of the statutes is neutral in terms of gender. Please try to interpret the law in the interest of every citizen of the country ”.
He also said the petition was not adversarial in nature and central government permanent attorney Kirtiman Singh, who also appeared for the Center, agreed that was not the case.
The two women, who were also represented by lawyers Arundhati Katju, Govind Manoharan and Surabhi Dhar, said in their plea that they have been living together as a couple for 8 years, in love with each other sharing the ups and downs. of life, but unable to marry as they are a same-sex couple.
The women, aged 47 and 36, claimed that not being allowed to marry denied them several rights – like owning a home, opening a bank account, having family life insurance – that couples of opposite sex take for granted.
“Marriage is not just a relationship between two people, it brings together two families. But it is also a set of rights. Without marriage, petitioners are strangers in law. Article 21 of the Indian Constitution protects the right to marry a person of one’s choice and this right applies as of right to same-sex couples, just as to opposite-sex couples, ”they argued in their plea .
The two men, also represented by the same group of lawyers, were married in the United States, but their marriage was not registered with the FMA by the Indian consulate as they were a same-sex couple.
“The Indian consulate would have registered the marriage of any opposite sex couple placed in the same way,” they argued.
The couple, who have been in a relationship since 2012 and married in 2017, also claimed that during the COVID-19 pandemic, the non-recognition of their marriage by the laws here continues to prevent them from traveling as a married couple. in India and spending time with their families.
They argued that the consulate’s decision violated their rights under Articles 14, 15, 19 and 21 which, according to the Supreme Court in the Navtej Singh Johar case, were guaranteed to LGBT and non-LGBT Indians with equal force. .
“In addition, the Foreign Marriage Act (FMA) must be interpreted as applying to same-sex marriages and is unconstitutional in that it does not,” their petition said.
They also declared that “the non-recognition of same-sex marriages is an act of gratuitous discrimination that strikes at the root of the dignity and personal development of lesbian, gay, bisexual, transgender and queer (LGBTQ) couples”.
The two 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 demanded that the ADM be declared unconstitutional as it does not allow the celebration of marriage between same-sex couples.
They also urged the court to declare that the ADM should apply to all couples regardless of their gender identity and sexual orientation and also issue a directive to Deputy Magistrate Kalkaji, who is also the marriage officer of the Southeast District of Delhi register their marriage under the law.
(Except for the title, this story was not edited by GalacticGaming staff and is posted from a syndicated feed.)