In 1st response to same-sex marriage, Centre cites 5,000 yrs of Sanatan Dharma
The two couples have argued that the lack of formal acceptance of their union under Indian laws was a violation of their constitutional rightsUpdated: Oct 14, 2020, 15:15 IST
The Delhi high court on Wednesday sought the response of the Centre and the Delhi government on pleas by two same-sex couples seeking legal recognition of their marriages, arguing that the lack of formal acceptance of their union under Indian laws was a violation of their constitutional rights.
A bench of justice Rajiv Sahai Endlaw and justice Asha Menon issued notices to the authorities and posted the matter for further hearing on January 8, 2021. The bench also said age-old inhibitions have to be shed when advocate Rajkumar Yadav, one of the counsels for the Centre, submitted that this is a peculiar circumstance and this situation has not been faced in 5,000 years of Sanatan Dharma.
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“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 sought to know from the counsel for the petitioner whether the concept of marriage has been challenged in the plea because the term “marriage” has not been defined. “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.
Explaining the difference, senior advocate Menaka Guruswamy said the only difference between the SMA and Foreign Marriage Act is that the latter allows foreigners of Indian origin to marry. She said the plea is not on the customary or religious 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, adding that many judges have said that sexual orientation cannot be ground for discrimination.
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, were in love with each other, but unable to marry as both were women.
“The petitioners are like any other couple you might meet, except they are both women,” their petition read.
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 in 2017. An Indian consulate refused to register their union this year under the 1969 Foreign Marriage Act.
The couple, who were in a relationship since 2012 and were supported by their families and friends, also claimed that during the Covid-19 pandemic, this non-recognition of their marriage prevented them from travelling to India as a married couple.
“The petitioners submit 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 (lesbian, gay, bisexual, transgender, queer) couples,” the petition read.
The two women said that issues like opening a joint bank account, buying family health insurance, or securing address proof – things that a married couple takes for granted – were a struggle for them. On September 30, they approached the marriage officer (the sub-divisional magistrate, South East Delhi, Kalkaji) seeking solemnisation of their marriage under the Special Marriage Act, 1954.
“The marriage officer would have solemnised the marriage of any similarly placed opposite-sex couple. Sexual orientation discrimination is constitutionally prohibited under Article 15, but the petitioners were refused the right to marry a person of their choice on grounds of their sexual orientation alone,” they said.
The petitions argued that the non-recognition of marriage between LGBTQ persons violated the fundamental rights of liberty, equality, life and freedom of expression guaranteed to them by the Supreme Court judgment, Navtej Johar vs Union of India, which decriminalised adult, consensual same-sex relations in 2018.
The Delhi high court is already hearing a petition filed by defence analyst Abhijit Iyer Mitra and three others. In response to that petition, solicitor general Tushar Mehta said last month that Indian values didn’t recognise same-sex unions.
The two petitioners were represented by senior advocate Menaka Guruswamy and advocates Arundhati Katju, Govind Manoharan and Surabhi Dhar. Guruswamy and Katju were among the lawyers who convinced the Supreme Court to read down Section 377 of the Indian Penal Code which criminalised homosexuality, in 2018.