Marriage Permissible Only Between Biological Man & Woman; Navtej Johar Case Doesn't Recognize Same-Sex Marriage: Centre Tells Delhi High Court

The bench of Chief Justice DN Patel and Justice Jyoti Singh has meanwhile granted time to all the parties to complete their pleadings.

The Bench was hearing a bunch of petitions filed by Abhijit Iyer Mitra, Vaibhav Jain, Dr Kavita Arora, an OCI card holder Joydeep Sengupta and his partner Russell Blaine Stephens.

When the matter was taken up, Advocate Karuna Nundy appearing for Sengupta and Stephens pointed out that the couple got married in New York and the laws applicable in their case are the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.

She highlighted the Section 7A(1)(d) of the Citizenship Act, 1955, does not distinguish between heterosexual, same-sex or queer spouses. It provides that 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.

"According to us, its a very straightforward issue. The Citizenship Act is silent on gender of couple...the onus on State is only to register. So if they (Centre) don't want to file a reply, we don't have an objection," she said.

However, Solicitor General Tushar Mehta appearing for the Central Government contended that 'spouse' means husband and wife, 'marriage' is a term associated with heterosexual couples and thus there is no need to file a specific reply with respect to the Citizenship Act.

"The law as it stands...marriage is permissible between biological man and biological woman," he said.

The SG further claimed that there is a misconception of Petitioners regarding the case of Navtej Singh Johar v. Union of India, which decriminalized homo sexual acts between adults in private. He said,

"The issue here is whether marriage is permissible between homosexual couples. Your Lordships have to decide that. There is some misconception regarding Navtej Singh Johar case. It merely decriminalizes...It does not talk about marriage."

Opposing this, Senior Advocate Saurabh Kirpal submitted,

"While the case does not expressly allow same-sex marriages, the inevitable conclusion favours recognising it. That is how constitutional matters are interpreted."

Earlier, the Centre had filed an affidavit opposing the pleas. It had said, "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 stated.

It had also opposed urgent listing of the pleas saying, "You don't need marriage certificate for hospitals, nobody is dying because they don't have marriage certificate."

About the pleas

The petition filed by Abhijit Iyer Mitra seeking 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 her plea, Dr. Arora has sought a direction 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 and his partner Russell Blaine Stephens 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."

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.

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Recently, in a protection plea filed by a same-sex couple, the Madras High Court judge Justice N. Anand Venkatesh had remarked that he is not fully "woke" to the concept of same-sex relationships and that he will undertake an education session with a psychologist to understand the same.

The psycho-education session, the Judge said, will help me understand same-sex relationships better and will pave way for my evolution.

So far as merits of the case are concerned, the Court noted that the Petitioner-couple was safely taken care of by an NGO and they had come on talking term with their parents on a regular basis, who were otherwise opposed to their unison.