The Delhi High Court on Tuesday, 6 July, issued a notice to the Centre on a fresh petition seeking legal recognition of same-sex marriage under the Foreign Marriage Act and Special Marriage Act, 1954.
The bench of Chief Justice DN Patel and Justice Jyoti Singh sought responses from the Ministry of Home Affairs, Ministry of External Affairs, the Consulate General of India, New York.
The matter will be heard next on 27 August, along with a batch of similar pleas.
The New Plea
A the new petition filed by Joydeep Sengupta – a Canadian citizen and an Overseas Citizen of India (OCI) cardholder – and his partner Russell Blaine Stephens prayed, "A spouse of foreign origin of Indian Citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse," reported LiveLaw.
According to the legal news website, the plea cited Section 7A(1)(d) pf the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses.
Sengupta and Stephens state that they have been married since 2012 and are currently residents of Paris, France. They asserted that they met in 2001 in New York and have been in a 'loving relationship' for the last 20 years.
They also added that they are preparing for their new role as parents and are expecting the first child in July, LiveLaw reported.
Who Are the Other Petitioners?
One petition, filed by members of the LGBT community Abhijit Iyer Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani, argues that the conception of marriage under HMA allows for same-sex marriages.
“Section 5 of the Act clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act,” the petitioners contend.
They suggest that there is no specification anywhere in the Act that this has to be between a Hindu man and a Hindu woman, and so it is illegal for authorities to refuse to register same-sex marriages under the HMA.
The other two pleas that operate on different grounds, argue that registration of same-sex marriages should be possible under SMA and FMA.
The SMA petition has been filed by two women – Kavita Arora and Ankita Khanna – who have been living as a couple for the last eight years. They tried to get married under SMA in September 2020, but the relevant court officer refused to do so.
They argue that this is discriminatory on the grounds of sexual orientation, which is impermissible under Article 15 of the Constitution, citing the Supreme Court’s ruling in 2018 striking down Section 377 of the Indian Penal Code (IPC).
The FMA petition was filed by two men, Vaibhav Jain and Parag Vijay Mehta. They got married in the USA in 2017, but when they approached the consulate to register their marriage under the FMA, their request was refused.
They have raised similar arguments regarding discrimination and other violations of constitutional protections, citing the Section 377 judgment.
(With inputs from LiveLaw)
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