New Delhi: The Delhi High Court on Wednesday sought response from the Centre and others over petitions filed by two same sex couples seeking enforcement of fundamental right of choice of partner. The court also observed that law is “gender-neutral”.
As they sought inclusion of solemnization of same sex marriage under the Special Marriage Act 1954 and the Foreign Marriage Act, 1969, a division bench of the high court presided by Justices Rajiv Sahai Endlaw and Asha Menon issued notice to the Centre and the Delhi government.
While one couple has sought direction to declare that the Special Marriage Act, 1954 ought to apply to all couples regardless of their gender identity and sexual orientation, and reading the SMA so as to apply to all couples irrespective of their gender identity and sexual orientation.
The other couple, an Indian citizen and an Overseas Citizen of India are two gay men, who married in Washington D.C, US in 2017 states that the Foreign Marriage Act, 1969 inasmuch as it discriminates against same-sex couples by denying legal recognition of their marriage is ultra vires Articles 14, 15, 19 and 21 the Constitution of India, and ought to be read down to extend to same-sex couples, plea said.
The pleas filed through advocates Arundhati Katju, Govind Manoharan, Surabhi Dhar and argued by senior advocate Menaka Guruswamy stated that like any other couple, “the petitioners want their relationship to be blessed and sanctified by society and by law”.
“Marriage offers both legal protections and social recognition of the commitment, support and security a couple offer each other, which are even more important in these times of the Covid-19 pandemic,” she said.
Senior advocate Guruswamy argued: “I follow that trail of couples who come for protection to this court.” She added that she has seen the high court protect multiple couples who were put at jeopardy because they married across caste lines, faiths etc. “I am seeking the same protection,” the senior counsel said.
She further submitted before the court that multiple judgements have stated sexual orientation cannot be a ground for discrimination.
While appearing for the Centre, advocate Raj Kumar Yadav said, “In Sanatana Dharma, in the last 5,000 years, this kind of situation we have not faced. This is a peculiar situation, we need to look at the history of Sanatan Dharma.
“Please try to interpret the law in favour of the rights of the citizens of the ‘Sanatan Dharma’ country. The law is gender-neutral, don’t see this petition as adversarial,” said Justice Asha Menon responding to the submissions made by the Central government counsel.
Following these arguments, the bench noted that the said case shall not be treated as adversarial, that it concerns rights of citizens. The court will now hear the matter next on January 8.