The Court heard two writ petitions which urged that the Special Marriage Act and the Foreign Marriage Act be interpreted to also apply to the marriages of same-sex couples.
One couple had assailed the prevailing interpretation of the Special Marriages Act. They had approached the concerned Sub-Divisional Magistrate to apply for marriage. They were refused entry into the building. Their lawyer was told that since they were a same-sex couple, they could not marry.
Another same-sex couple, two men who had been married by the highest-ranking Indian Judge in New York, were denied the registration of their marriage under the Foreign Marriages Act by the Indian Consulate in New York. Advocate Arundhati Katju was also present on behalf of the Petitioners. Advocate Sangita Rai was present on behalf of one of the Respondent-authorities.
Senior Advocate Menaka Guruswamy, representing the Petitioners, stated that the couples prayed to be recognised as “full human beings” on behalf of two same-sex couples. The Petitioners had been rendered right-less, argued Adv. Guruswamy. It was further stated that the Consulate had openly admitted to having denied the marriage registration on the ground of sexual orientation alone. The couple was told that the prevailing guidelines do not permit the registration of their marriage.
It was further asserted that the authorities’ actions indicated that they were unaware of the Supreme Court’s pronouncements in Puttuswamy’s case and the Navtej Singh Johar case, whereby the Apex Court had ruled against the discrimination on the grounds of sexual orientation.
Responding to Justice Menon’s query on whether any appeal was moved before the government challenging such refusal to recognise the marriages, the Counsel pointed out that the Petitioners were not even allowed such an opportunity. It was also asserted that the issue was not a matter of customary rights, but rather of civil rights that were sought to be recognised.
The Counsel drew the Court’s attention to how special rights were given to married couples. This was for buying a house, availing life insurance policies, taking care of the families of one’s partner, getting loans, etc.
She relied on the Supreme Court’s rulings in the Puttaswamy and the Navtej Singh Johar cases to assert that Article 21 had been interpreted to encompass the rights of same-sex couples, including their right to marry.
In this backdrop, she argued that the Petitioners want recognition as full citizens. She explained that while the earlier plea was filed in the public interest by parties not directly affected, the instant case involves petitioners who were aggrieved.
She went on to highlight that the Special Marriages Act only dealt with parties who cannot enter into a marriage. i.e. insane persons, minors, degrees of relations, and where there was no consent.
The Central Government’s Standing Counsel was Advocate Kirtiman Singh. He argued that the matter cannot be treated as adversarial.
Advocate Raj Kumar Yadav submitted that the matter was a “peculiar situation”. Notably, while responding to the earlier plea, Solicitor General Tushar Mehta had told the Delhi High Court that our legal system did not recognise the marriage between same-sex couples.
The Delhi High Court Bench of Justices RS Endlaw and Asha Menon issued a notice in the matter. The remark drew a sharp response from Justice Menon, who stated that the laws were gender-neutral.
Justice Endlaw pointed out that the definition of “marriage” in Indian law had not been statutorily defined. This meant that authorities generally relied on its customary interpretation. Notice in the present matter was accepted by both the Union of India and the Government of Delhi.
The Court directed the parties to file affidavits within four weeks. The rejoinders thereto may be filed within four weeks thereafter.
The Court listed the matter for its next hearing on January 8, 2021.
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