Delhi High Court Issues Notice On Plea Seeking Recognition To Same-Sex Marriages In Citizenship Act, Special Marriage Act & Foreign Marriage Act

A division bench of Chief Justice DN Patel and Justice Jyoti Singh today issued notice on a plea seeking recognition to same-sex marriages under the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.

The bench has sought replies of 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 Aug 27 alongwith a batch of similar pleas.

Filed by one Joydeep Sengupta, who is a Canadian citizen and an Overseas Citizen of India (OCI) cardholder, and his partner Russell Blaine Stephens, the petition has prayed for a declaration from the Court that "a spouse of foreign origin of an 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."

Advocate Karuna Nundy represented the petitioner.

The plea reasons that since S. 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, should be declared eligible to apply as a spouse for an OCI card.

The petition has also prayed for a direction in the nature of prohibition to the 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.

On the subject of the Foreign Marriage Act, the plea asks for a direction in the that to the extent the Foreign Marriage Act, 1969 excludes same-sex marriages or queer marriages, it be declared to be in violation of Articles 14, and 21 of the Constitution of India. The plea states that the Foreign Marriage Act, 1969 should be read "to recognize marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties."

A similar prayer is made in respect of the Special Marriage Act, 1954, stating that "to the extent that the Act excludes same-sex marriages or queer marriages, it violates Articles 14, 15, 19 and 21 of the Constitution of India" and therefore to "read the Special Marriage Act 1954 to recognize marriages between consenting adults irrespective of the gender, sex and sexual orientation of the parties."

Facts

Sengupta and Stephens state themselves to be a married same-sex couple resident in Paris, France. They state that they met in New York in 2001 and "have been in a loving relationship for nearly 20 years."

As per the plea, they got married in New York on Aug 6, 2012, and are recognized as a legally married couple in the United States of America, France, and Canada – the three countries where they have primarily lived and worked in the last twenty years.

They have a certificate of registration of marriage issued by the Office of the City Clerk of New York dated 6th August 2012 and apostille certificate of the same date issued by the Special Deputy Secretary of State, New York.

They state that they are preparing  for their new role as parents, and are expecting their first child in  Jul 2021.

Sengupta's parents and extended family all live in India, and he continues to maintain longstanding professional ties to India and travels to his Indian home regularly.

Sengupta's husband, Stephens is a US citizen and currently a long term resident of France. However, he states he has no legal status in India and has only been able to visit India after qualifying for various temporary visitor or business visas.

Other Pleas Of Similar Nature

Earlier, arguing against the urgent hearing of this batch of pleas, the Union of India had told the Delhi High Court, "You don't need marriage certificate for hospitals, nobody is dying because they don't have marriage certificate."

The centre had also submitted a letter seeking adjournment, pointing out that the court was only hearing "extremely urgent" cases then, and raised issue with the roster of the bench.

Taking note of the same, the court had adjourned hearing the batch of pleas to Jul 6.

Sr. Adv. Saurabh Kirpal for one of the petitioners had argued that the urgency of the subject matter should be looked upon in a neutral manner and only decided by the court, whereas, Sr. Adv. Menaka Guruswamy for one of the petitioners had informed Court that issues were also being faced in getting admission in hospitals and medical treatment for them.

However, Solicitor General Tushar Mehta had refuted the submissions arguing that marriage certificates are not necessary for admissions in hospitals.

Earlier, opposing the petition seeking recognition to same-sex marriages under various personal laws, the Centre had told the court through an affidavit that, "there is a "legitimate state interest" in limiting recognition of marriage to persons of opposite sex only", and that the institution of marriage is not merely a concept relegated to the domain of privacy of an individual.

"The acceptance of the institution of marriage between two individuals of the same gender is neither recognized nor accepted in any uncodified personal laws or any codified statutory laws", the affidavit filed had stated.

The centre had also said that contrary to the popular view that homosexuality was legalized by the Supreme Court in the case of Navtej Singh Johar v. Union of India, the court had "only made a limited declaration to decriminalize a particular human behavior, which was a penal offence under S.377 IPC. The said declaration was neither intended to, nor did in fact, legitimise the conduct in question."

Observations in 'Puttaswamy Judgment'(Privacy Case) and 'Navtej Johar' case(which struck down Sec 377 IPC) do not confer a fundamental right to seek recognition of same-sex marriages, it had Centre argued.

[Udit Sood and Ors. v. Union of India and Anr.]