COURTESY HT OCT 15

HC notice to govts on same-sex marriages
Richa Banka

richa.banka@htlive.com

New Delhi : The Delhi high court on Wednesday sought responses from the Centre and the Delhi government on pleas by two same-sex couples seeking legal recognition of their marriages under two different civil laws, the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA), and observed that “laws are gender-neutral” and are for the rights of “every citizen”.

A bench of justices Rajiv Sahai Endlaw and Asha Menon said marriage is not defined in both acts, but the concept emanates and is interpreted under customary laws that do not recognise same-sex marriages.

The bench stated that inhibitions could be shed after Rajkumar Yadav, one of the counsels for the Centre, submitted that the pleas presented a peculiar circumstance and that such a situation has not been faced in 5,000 years of ‘Sanatan Dharma’.

“We may shed our inhibition. The laws are gender-neutral. You please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not an adversarial litigation. This is for the right of every citizen of the country,” justice Menon said.

Central government standing counsel Kirtiman Singh said that the issue would require a detailed reply.

During the proceedings, the court said SMA was enacted as there were no customs for inter-faith and inter-caste marriages, and stated that once same-sex marriage is recognised under the customary laws, other statutes like SMA and FMA would follow suit. It stated that if the petitioners wished to make any change in their pleas to challenge the definition of marriage, now was the time to do so.

“Please understand that till the concept of marriage is not challenged, it would not be able to move forward in the matter because marriage is not defined. There is otherwise no question on the maintainability of the pleas but in both the Special Marriage Act and Foreign Marriage Act, the term marriage has not been defined,” said the court.

However, senior advocate Menaka Guruswamy who argued for the petitioners, said the plea was not to challenge customary or religious laws, but discrimination by civil laws.

“This is about the civil law, a statute provided by the Indian law for inter-caste, inter-faith, modern couples, same sex couple etc,” she said and added that past judgments have held that sexual orientation cannot be grounds for discrimination.

The court posted the matter for further hearing on January 8, 2021.

The first petition was filed by two mental health professionals — Kavita Arora, 47, and Ankita Khanna, 36 — who said they had been living together as a couple for eight years, took care of each others’ parents, were in love with each other, but unable to marry each other.

The second petition was filed by two men — Vaibhav Jain, an Indian citizen, and Parag Vijay Mehta, an overseas citizen of India — who got married in the United States, where same-sex marriage is legal, in 2017. An Indian consulate refused to register their union this year under the 1969 Foreign Marriage Act.

The Delhi high court is already hearing a Public Interest Litigation filed by defence analyst Abhijit Iyer Mitra and three others.