The Delhi High Court on Wednesday asked the Centre to respond to two separate petitions by same-sex couples seeking to declare that the Special Marriage Act (SMA) and Foreign Marriage Act (FMA) ought to apply to all couples regardless of their gender identity and sexual orientation.
A Bench of Justices Rajiv Sahai Endlaw and Asha Menon remarked that they had no doubts as to the maintainability of the petitions but wanted answers as to whether the definition of marriage under the customary law also needed to be challenged going forward. The Bench said both the statutes — SMA and FMA — did not provide for what was marriage.
“Marriage is not defined...When something goes against what an authority in India has been seeing for his/her entire life, they won’t accept it...Our doubt is that you (petitioners) would encounter this difficulty later during the proceeding,” the Bench remarked.
It additionally said that marriage till now had not been statutory. “Marriage under Indian law is customary. Because there was no inter-faith, we came up with a special statute,” the Bench said adding that once the concept of marriage was understood as including ‘same-sex’ it would be followed in other statutes as well.
Senior advocate Menaka Guruswamy, appearing for the petitioners, argued that multiple judgments of the Supreme Court and the Delhi High Court had said that sexual orientation could not be grounds for discrimination.
She stated that the petitioners were challenging the constitutionality of the reading of the statutes. Ms. Guruswamy argued that SMA prohibited “who cannot enter into a marriage”, including age restrictions.
The High Court had posted the case for further hearing on January 8 next year.
One of the petitions filed by two women said they had been a couple for eight years, lived together and shared the highs, the lows and the joys and sorrows of life. They sought a direction to the Sub-Divisional Magistrate Kalkaji here to register their marriage under the SMA.
The other plea has been moved by two men, who got married in the United States, but their marriage registration was denied under the FMA as it excluded same-sex marriages.
The two women in their petition stated that the lack of a legal structure around their relationship became increasingly stark when they tried to bring each other on as nominees in insurance and financial plans, just as a married couples did.
“The petitioners’ relationship is not recognised when they need to apply for address verification of their passport, or apply for a joint bank account, or co-own assets,” their plea stated.
They were unable to do simple things that a married couple took for granted. They said that for the longest time, one of them did not have any proof of residence, even though the other owned the flat they lived in. This became particularly difficult when they had to apply for a passport to travel abroad.
Additionally, the couple could not take medical decisions for each other if the other partner was unable to consent to a medical procedure or take end-of-life decisions, their plea contended.
“The petitioners wish to have the protection of the bundle of rights that a marriage provides, so that they are not trying to get authorities to acknowledge their relationship for every entitlement or right that married couples would get automatically,” their plea said.
The two men in their petition sought for the legal recognition of their status as a married couple, and to be able to secure the rights, privileges, and benefits for each other appurtenant to the legal recognition of marriage in India.
They claimed that their plea for registration of marriage was rejected by the Indian consulate at New York on the ground that they were of the same sex.
They argued that the right to marry a person of one’s choice had been expressly recognised as being a facet of the right to life and liberty under Article 21 of the Constitution of India.
The FMA failed to recognise same-sex marriages, and hence it violated multiple facets of Article 21 of the Constitution.