The Delhi High Court on Tuesday issued a notice to the Centre on a petition seeking legal recognition for same-sex marriages under the Citizenship Act, the Special Marriage Act and the Foreign Marriage Act, Live Law reported.
The petition was filed by Joydeep Sengupta, a Canadian citizen who holds an Overseas Citizen of India card, and his partner Russell Blaine Stephens. The couple, who live in France, got married in the United States in 2012. Their marriage is recognised in the two countries as well as Canada. Sengupta’s extended family lives in India.
The petitioners argued that any person married to an Overseas Citizen of India should also be eligible to apply for an OCI card, since Section 7A(1)(d) of the Citizenship Act, 1955, did not differentiate between heterosexual and same-sex partners, according to Live Law.
They also urged the court to prohibit the Consulate General of India in New York from declaring same-sex spouses of Overseas Citizens of India ineligible to apply for the permit themselves.
Sengupta and his partner argued that the exclusion of same-sex marriages from the Special Marriage Act and Foreign Marriage Act was a violation of Articles 14 (equality before the law) and 21 (protection of life and personal liberty) of the Constitution of India.
The petitioners said that the laws must recognise marriages between consenting adults “irrespective of the gender, sex and sexual orientation of the parties”, according to Live Law.
After hearing the couple’s petition, a division bench of Chief Justice DN Patel and Justice Jyoti Singh sought responses from the Ministry of External Affairs, the Ministry of Home Affairs and the Consulate General of India in New York. The court will take up the couple’s plea and other related petitions on August 27.
In May, the Centre had opposed an urgent hearing of the batch of petitions in the Delhi High Court seeking recognition for same-sex marriages.
Solicitor General Tushar Mehta had argued that the government was focusing only on “real urgent issues” amid the devastating second wave of the Covid-19 pandemic. “You don’t need a marriage certificate for hospitals,” Mehta had said. “Nobody is dying because they don’t have a marriage certificate.”
In February, the Centre told the Delhi High Court that in spite of decriminalisation of homosexuality under Section 377 of the Indian Penal Code, same-sex marriage was not a fundamental right in the country.
In an affidavit, the central government also submitted that same-sex couples living together as partners and having sexual relationships could not be compared to an “Indian family unit”.
The Union government said that a fundamental right under Article 21 of the Constitution was subject to procedure established by the law, and same-sex marriages were “neither recognised nor accepted in any uncodified personal laws or any codified statutory laws”.
In a same-sex marriage, it was not possible or feasible to term one of the partners as “husband” and the other as “wife” and so, “the statutory scheme of many statutory enactments will become otiose”, the government stated.