Same Sex Marriage: Delhi High Court Expresses Displeasure At "Objectionable Comments" In Centre's Affidavit Opposing Live Streaming

The Delhi High Court on Tuesday expressed strong displeasure at the "objectionable comments" made in the Central Government's affidavit opposing live streaming of proceedings in the case concerning recognition and registration of same-sex marriages in the country.

The Centre had claimed that the applicant is attempting to create "unnecessary hype" of the matter and its sole intention is to "create hallucination" of public interest and to make the matter "sensational".

Drawing the Court's attention to these averments, Senior Advocate Neeraj Kishan Kaul for the petitioners expressed his anguish and submitted that the Centre may have its reservations to live-streaming. However, the language used in the affidavit is derogatory and demeans the rights of a particular segment of the society.

[Same Sex Marriage] No Violation Of Fundamental Rights, Trying To Create Unnecessary Hype: Centre Opposes Plea For Live Streaming In Delhi High Court

Following this, the Division Bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla refused to take the affidavit on record and directed the Centre to file a better reply.

"If there is anything objectionable in the affidavit, you (counsel) don't have to file it. Such affidavit cannot directly come from the Union Ministry. These things must be vetted. Don't do a mindless exercise. This is not done," the Bench orally told the government counsel.

The government counsel then assured the Court that they will come out with a better affidavit before the next date. Accordingly, the matter was adjourned to August 20.

The application for live streaming was filed by three professionals based out of Mumbai and Karnataka, in the petition filed by Abhijit Iyer Mitra seeking registration of marriages of LGBTQIA couples under the Hindu Marriage Act.

Notice in the application was issued in November 2021. It submitted that a substantial number of people (about 7-8% population of country) are interested in the proceedings and outcome of this matter. However, they are unable to witness the proceedings due to space constraint in Courtrooms and limitation of technical platforms like Cisco Webex, which is currently being used by the High Court for hybrid functioning.

In the reply to the application seeking live streaming of the proceedings, the Ministry of Law and Justice argued that the permission for live streaming of the proceedings in the matter may not be granted as neither the matter involves violation of any fundamental right, nor is it the one relating to national importance.

It was alleged that the applicant is trying to turn away from the legal and constitutional infirmities of the writ petition and is striving to attract "global attention" to his alleged cause.

About the pleas

The petition filed by Abhijit Iyer Mitra seeks registration of marriages of LGBTQIA couples under the Hindu Marriage Act. It is argued that the language used in the Hindu Marriage Act is gender-neutral, and it doesn't explicitly prohibit the marriages of same sex couples.

In another plea filed by Dr. Kavita Arora, a direction is sought to be issued to the Marriage Officer, South East Delhi, to solemnize her marriage with her partner under the Special Marriage Act. it is her case that the fundamental right to choose one's own partner for marriage under Article 21 of the Constitution extends to same-sex couples as well.

The plea moved by Joydeep Sengupta, an OCI card holder, and his partner Russell Blaine Stephens prays 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."

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 High Court has also issued notices on two related petitions, one seeking recognition of the marriage of a Transgender person and another seeking recognition of marriage of a lesbian couple.

Case Title: ABHIJIT IYER MITRA & ORS. v. UNION OF INDIA & ANR.