Same-sex couple moves court over marriage

Updated - October 09, 2020 12:08 pm IST

Published - October 09, 2020 12:45 am IST - New Delhi

File photo of members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community walk with a rainbow flag (for representation only)

File photo of members and supporters of the lesbian, gay, bisexual, transgender (LGBT) community walk with a rainbow flag (for representation only)

A same-sex couple has moved the Delhi High Court seeking to declare that the Special Marriage Act ought to apply to all couples regardless of their gender identity and sexual orientation.

The petitioners, both women, said they have been a couple for eight years, live together and share the highs, the lows, the joys and sorrows of life.

They sought a direction to the Sub-Divional Magistrate, Kalkaji, here to register their marriage under the Special Marriage Act.

Justice Navin Chawla, before whom both the petitions came up for hearing on Thursday, directed the registry to list them before the Bench of the Chief Justice of the High Court which is already hearing a petition to recognise same sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).

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 does.

“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.

The couple said they are unable to do simple things that a married couple takes for granted. They said that for the longest time, one of them did not have any proof of residence, even though the other owns the flat they live in. This became particularly difficult when they had to apply for a passport to travel abroad.

Additionally, the couple cannot take medical decisions for each other if the other partner is 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.

They have sought for 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 has been expressly recognised as being a facet of the right to life and liberty under Article 21 of the Constitution of India.

The Foreign Marriage Act fails to recognise same-sex marriages, and hence it violates multiple facets of Article 21 of the Constitution.

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