Delhi HC seeks Centre's response on same-sex marriages
In what qualifies as a progressive statement, the Delhi High Court on Wednesday, while hearing petitions of two same-sex couples regarding the legal recognition of their marriages, said laws are gender-neutral. The litigation, the court said, was not adversarial in nature. A response from the Centre and Delhi government was sought. The matter will be heard again on January 8, 2021. Here's what happened.
The couples approached the court after running into several roadblocks. While the Consulate General of India in New York refused registration of marriage of Vaibhav Jain and his partner Parag Mehta under Foreign Marriage Act, Dr. Kavita Arora and her partner Ankita Khanna couldn't get theirs solemnized under the Special Marriage Act at the South District Magistrate's building in East Delhi.
The couples were represented by senior lawyer Maneka Guruswamy, who played a key role in the historic Article 377 verdict of 2018. Guruswamy pointed toward multiple Supreme Court verdicts, that spoke about respecting the privacy of same-sex couples. Sexual orientation can't be a ground for discrimination, she said, adding, on behalf of petitioners, "We would like to be recognized as full human beings."
Guruswamy apprised the court that Dr. Arora and Khanna were not even given entry into the building. "Only their lawyer was told that since they were a same-sex couple, they could not marry," she said. About Jain and Mehta, she told the Consulate admitted their marriage was not being registered due to their sexual orientation. The present laws forbade the same, they were told.
Further, it was argued that the two women were unable to do many things, like opening a joint bank account, owning a house, or getting a family insured, due to the problems associated with their marriage registration. Such things come easy to heterosexual couples, they highlighted. "Marriage is also a bundle of rights. Without marriage, the petitioners are strangers in law," their plea read.
The celebrated lawyer said she is following the trail of dozens of couples, shunned for marrying outside their caste or faith, whom the court protected. "I'm seeking the same protection...Multiple judges have said that sexual orientation cannot be grounds for discrimination," she said. She also underlined that the Special Marriage Act merely defines "who cannot marry." "This is what the statute conceives," she went on.
The division bench of Justices Rajiv Sahai Endlaw and Asha Menon heard the pleas and cast no doubt on the maintainability. However, Justice Endlaw said "marriage" hasn't been statutorily defined in Indian law. "Because there was no inter-faith marriage, we came up with a special statute. If any corrective measures are to be taken, it should be taken at this stage," he reportedly said.
Meanwhile, Centre's representative, advocate Rajkumar Yadav said the situation was unseen in 5,000 years of Sanatan Dharma. On this, Justice Menon replied, "We may shed our inhibition. The laws are gender-neutral. Please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not adversarial litigation. This is for the right of every citizen of the country."