New Delhi: The Delhi High Court has referred, to a division bench, a plea filed by a same sex couple who approached it, seeking legal recognition of their marriage under the Foreign Marriage Act, 1969.
The petition was listed before a single judge bench of Justice Navin Chawla who has referred the matter to a two judge bench.
The two petitioners, an Indian citizen and an Overseas Citizen of India, are two gay men who married in Washington D.C in 2017.
As per their plea, they had, on March 5, approached the Indian Consulate in New York to register their marriage under the Foreign Marriage Act, but it refused their application on grounds of their sexual orientation alone. The Indian Consulate would have registered the marriage of any similarly placed opposite sex couple, they said.
The plea stated that the refusal to register the marriage of the petitioners violates Articles 14, 15, 19, and 21 of the Constitution of India.
Further, they contended that the Foreign Marriage Act, inasmuch as it discriminates against same sex couples by denying legal recognition of their marriage, is ultra vires Articles 14, 15, 19 and 21 of the Constitution, and ought to be extended to same sex couples.
The petitioners further submitted that that the Indian Supreme Court has, in various decisions, held that the right to marry a person of their choice is inherent in Article 21 of the Constitution, and that non-recognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfillment of LGBTQ couples.
The petition further states that petitioner’s marriage was officiated by Judge Sri Srinivasan, the Chief Judge of the United States Court of Appeals of District of Columbia Circuit, and is valid under US law.
Before the pandemic, the petitioners regularly visited India annually during the Dussehra and Diwali festivals. Amidst the lockdown during the Covid-19 pandemic, all foreign citizens, including OCI cardholders, were restricted from entering the country. When a relaxation was brought in May 2020, it was restricted to certain class of OCI cardholders such as those persons whose spouse was an Indian national, or those whose parents were Indian nationals, the plea said.
“Non-recognition of the petitioners’ marriage by law in India continues to disentitle them to travel as a married couple to India and spend time with their families,” their petition said.
The first petitioner, who is an Indian citizen, met the other (an OCI) in Washington D.C., fell in love and over time, as their relationship grew, they met each other’s parents and the families grew close.
With the blessings of the parents, the petitioners decided to take the next step – to get married to each other.
Following the court registration in 2017, the petitioners, with the full support and blessings of their parents and family members, were married in Killeen, Texas in March 2019 in a traditional Jain wedding with all the ceremonies commonly performed at such events.
Thereafter, in November 2019, the parents of the first Petitioner held a reception for the newly-weds in their home in New Delhi which was attended by around 100 close friends and family.
