New Delhi: The Delhi high court on Tuesday issued notice to the Union government on a plea seeking recognition of same-sex marriages under the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.
According to LiveLaw, the bench has sought replies from the Ministry of Home Affairs, the Ministry of External Affairs and the Consulate General of India, New York, and listed the matter for hearing on August 27 along with a batch of similar pleas.
The petition, which is filed by Joydeep Sengupta, a Canadian citizen and an Overseas Citizen of India (OCI) cardholder, and his partner Russell Blaine Stephens, urged the court to declare that a spouse of foreign origin of an Indian citizen or an 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.
The plea said 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 OCI, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.
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According to the report, the petitioners said they were expecting their first child in July 2021. And Stephens said he wished to apply for the OCI status under the Citizenship Act as a spouse of an OCI cardholder. This would enable him to visit India, even during the ongoing COVID-19 pandemic, and spend time with Sengupta’s family.
According to The Hindu, the plea sought a direction restraining the Consulate General of India, New York, from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same, merely on the ground that they were in a same-sex marriage or queer (non-heterosexual) marriage.
“The right to marry a person of one’s choice as an essential component of the right to autonomy, privacy within Article 21 has been recognised by a catena of judgments in India,” the plea added.
The plea also asked to declare that the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954 violate Articles 14, 15, 19 and 21 of the Constitution of India as they exclude same-sex marriages or queer marriages. It said that the Acts should recognise marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties.
Also read: Why the International Law Angle Is Missing From Cases on Same-Sex Marriages
Centre’s opposition to same-sex marriages
The Supreme Court on September 6, 2018 decriminalised homosexuality under Section 377 of the Indian Penal Code. However, despite that, nearly three years after the landmark judgment was delivered by the apex court, the Union government is still to go the extra mile.
The Union government on February 26 sought dismissal of petitions seeking legislation of same-sex marriage, and told the Delhi high court that marriage in India necessarily depends upon “age-old customs, rituals, practices, cultural ethos and societal values”. The court was hearing a plea that sought marriage rights for the gay community under the Hindu Marriage Act, 1955.
The government further said that same-sex individuals living together in a relationship is “not comparable” with the “Indian family unit concept” of a husband, wife and children, arguing that the institution of marriage has a “sanctity”.
“In our country, despite statutory recognition of the relationship of marriage between a biological man and a biological woman, marriage necessarily depends upon age-old customs… societal values,” it said.
It further asserted that the question as to whether same sex marriage can be given legal recognition should be left to the legislature.