Delhi HC issues notice to Centre on plea seeking legal recognition of same-sex marriage

The Delhi High Court on Tuesday issued notice to the Centre and others on a fresh petition seeking legal recognition of same-sex marriage.

The petition also sought to declare that a spouse of foreign origin of an Indian citizen or Overseas Citizen of India (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.

A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh asked Centre and others to file a reply on the fresh petition and listed it for further hearing on August 27.

The Court also tagged the other petition relating to same-sex marriage with a fresh one.

The fresh petition was filed by advocates Karuna Nundy with lawyers Ruchira Goel, Utsav Mukherjee, Ragini Nagpal and Abhay Chitravanshi.

The petitioners are a married same-sex couple resident in Paris, France. They met in New York in 2001 and have been in a loving relationship for nearly 20 years. The petitioners got married in New York on August 6, 2012, and are recognized as a legally married couple in the US, France, and Canada - the three countries where they have primarily lived and worked in the last 20 years and now they are preparing for their new role as parents, and they are expecting their first child in July 2021.

One among the couple is of Indian origin and now he sought to attain OCI status at the earliest in order to avail of this facility so that he can spend time in India - where the petitioner's family lives - with his spouse and the baby they are expecting and indeed, to reach his husband and baby immediately in case of illness or other difficulties as needed during the pandemic.

The present petition sought a declaration that a spouse of foreign origin of an Indian Citizen or OCI cardholder is entitled to apply for registration as an Overseas Citizen of India under Section 7A(1)(d) of the Citizenship Act, 1955 regardless of the gender, sex or sexual orientation of the applicant spouse.

The petitioners also sought legal recognition of all same-sex, queer or non-heterosexual marriages under secular legislations for marriage such as the Foreign Marriage Act 1969 and the Special Marriage Act 1954 in accordance.

The petition sought direction in the nature of a declaration that since section 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses, a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, be eligible to apply as a spouse for an OCI card.

The petition also sought to issue a writ, order or direction in the nature of prohibition to respondent Consulate General of India, New York, restraining it from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same merely, on the ground that they are in a same-sex marriage or queer (non-heterosexual) marriage; and also restraining it from refusing to certify/apostille the registered marriage certificate of the petitioners on this ground.

The petitioners sought to issue a writ, order or direction in the nature of declaration that to the extent the Foreign Marriage Act, 1969 excludes same-sex marriages or queer marriages, it violates articles 14, and 21 of the Constitution of India; and further read the Foreign Marriage Act, 1969 to recognize marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties.

The plea also sought to issue a writ, order or direction in the nature of declaration that to the extent the Special Marriage Act, 1954 excludes same-sex marriages or queer marriages, it violates articles 14, 15, 19 and 21 of the Constitution of India; and further read the Special Marriage Act 1954 to recognise marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties.

It also sought to issue a writ order or direction in the nature of declaration to the effect that the right to legal recognition of same-sex marriage or queer marriage is a fundamental right under Articles 14, 15, 19 and 21 irrespective of a person's gender, sex or sexual orientation; and that all such marriages be legally recognized in India under the applicable statutes, rules and policies that are in force.

Earlier various petition was filed seeking legal recognisation of the same-sex couple. The petitioners had said the LGBT community members are forced to suppress their feelings of getting married to the person of their own choice and raised the issue that denying the LGBT community the option to marry is absolute discriminatory and creates them a Second Class of Citizens.

The Centre has earlier told the Delhi High Court that the acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.

The Centre in its reply on various petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act and the Foreign Marriage Act, has opposed it saying that pleas are unsustainable, untenable and misplaced.

The Centre in its reply said "marriage" is essentially a socially recognised union of two individuals, which is governed either by uncodified personal laws or codified statutory laws.

( With inputs from ANI )