Key Points :
- The Delhi Court on Wednesday heard two separate petitions filed by two same-sex couples demanding a direction for registration of marriage under the provisions of Special Marriage Act and Foreign Marriage Act.
- The matter was heard by a bench comprising Justice Rajiv Sahai Endlaw and Justice Asha Menon. The court sought the government’s response on the matter.
- Same-sex marriages are currently non-recognisable in India and the petition demands same-sex couples be “recognised as full human beings” and allowed marital privileges.
The Delhi High Court on Wednesday sought the government’s response after hearing separate petitions filed by two same-sex couples demanding a direction for registration of marriage under the provisions of Special Marriage Act and Foreign Marriage Act. The petition urged the court to allow the Special Marriage Act, 954 and the Foreign Marriage Act, 1969, which provides for “marriages of citizens of India outside India” to apply to all couples regardless of their gender identity.
Senior advocate Menaka Guruswamy, representing the petitioners made an ardent plea for the couples to be “recognised as full human beings”.
A bench comprising Justice Rajiv Sahai Endlaw and Justice Asha Menon heard the petition and issued notice to the Centre and Delhi government seeking their responses. Advocate Rajkumar Yadav, one of the counsels for the Centre argued that this matter was ‘peculiar’ and that such a situation has not arisen in the 5,000 years of Sanatan Dharma.
On this, Justice Menon said, “We may shed our inhibitions. 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 cited 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. Gururswamy contended saying, “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.”
The couples’ petition argued that the non-recognition of marriage between LGBTQ persons is a violation of the fundamental rights of liberty, equality, life and freedom of expression guaranteed to them by the Supreme Court.
One of the petitions was filed on 5 October by a Delhi-based couple that has been living together for 8 years whose marriage could not be registered under the Special Marriage Act due to them being a same-sex couple. The second petition was filed earlier this month by US-based Vaibhav Jain and Parag Mehta seeking registration of their marriage under the Foreign Marriage Act.
Ahead of the hearing, #YesHomoVivah started trending on Twitter.
Comedian Vir Das tweeted, “Tomorrow, the Indian courts will decide whether to legalize same sex marriage in India. It’s a landmark decision and hopefully, our nation does the right thing. #YesHomoVivah.”
Tomorrow, the Indian courts will decide whether to legalize same sex marriage in India. It's a landmark decision and hopefully, our nation does the right thing. #YesHomoVivah pic.twitter.com/NMdgccCkJc
— Vir Das (@thevirdas) October 13, 2020
Other users joined in, voicing their support for a positive outcome for same-sex marriages.
hoping for better days in India #YesHomoVivah pic.twitter.com/DofZQ3n9GO
— ᴮᴱu⁷ (@btssed) October 14, 2020
It is only human bodies that possess gender , not souls .#YesHomoVivah
— Krutika (@Krutika57314622) October 14, 2020
Love is love. 🏳️🌈
Queer India, we are with you! 🏳️🌈#YesHomoVivah 🏳️🌈 pic.twitter.com/4RsOVO1P1y
— Jude the Demon Says #EndPoliceBrutalityInNigeria (@jude4art) October 14, 2020
The matter will be heard next on January 8.
