Only marriage between man, woman valid, says Centre in Delhi high court
Decriminalizing homosexuality has nothing to do with same-sex marriages and a valid marriage can take place only between a biological man and a biological woman, the Union government told the Delhi high court on Monday.
“The law is settled, either with or without the Navtej Johar case (a reference to the judgment decriminalizing homosexuality). The law is settled, personal laws are settled and marriage, which is contemplated, is between a biological man and biological woman,” solicitor general Tushar Mehta told a bench of chief justice DN Patel and justice Jyoti Singh.
The court was hearing a clutch of pleas seeking legal recognition of same sex marriages under the Special Marriage Act and Foreign Marriage Act, including those by Abhijit Iyer Mitra, Gopi Shankar, Giti Thadani and G Oorvasi.
The bench was also hearing a plea by three persons, Joydeep Sengupta, an OCI (overseas citizen of India), Russell Blaine Stephens, a US citizen, and Mario D’Penha, an Indian citizen and queer rights academic and activist pursuing a PhD at Rutgers University, for allowing a foreign-origin spouse of an OCI cardholder apply for registration regardless of gender or sexual orientation.
The petitioners, through advocate Karuna Nundy, said all same-sex or queer marriages should be legally recognized in India under the applicable statutes, rules and policies that are in force.
The government is yet to respond on this aspect, said Nundy, appearing for Sengupta and Stephens, while pointing out that the couple were married in New York and the laws applicable in their case are the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.
Section 7 A (1) (d) of the Citizenship Act does not distinguish between heterosexual, same-sex or queer spouses, she said. It provides that a person married to an OCI, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.
However, Mehta contended that “spouse” means husband and wife; “marriage” is a term associated with heterosexual couples; and thus there is no need to file a specific reply with respect to the Citizenship Act.
“Everything would turn whether your lordship recognizes the submission…on the question of marriage and registration of marriage. Whether it has to be between a biological man and biological woman....Then the entire matter depends on that. There appears to be some miscommunication based on Navtej Johar, which merely decriminalizes 377….But it has nothing to do with marriage,” the central government’s lawyer said.
Lawyer Saurabh Kirpal, appearing for one of the petitioners, disagreed with Mehta’s submission of marriages between biological man and woman, and said he would argue against it.
The parties said they were ready with their pleadings and the matter could be fixed for final hearing.
Following this, the court posted the matter for November 30 for a final hearing, while granting liberty to the parties to file written submissions.
The first plea filed by Mitra, Shankar, Thadani and Oorvasi, through counsel Raghav Awasthi, had contended that the Hindu Marriage Act does not distinguish between heterosexual and homosexual marriages if one were to go by how it is worded. The act clearly states marriage can be solemnised between “any two Hindus,” the petition argued.
The second petition was filed by two mental health professionals, Kavita Arora, 47, and Ankita Khanna, 36, seeking legal recognition of their marriages under two different civil laws, the Special Marriage Act and the Foreign Marriage Act.
The third plea was filed by two men, Vaibhav Jain, an Indian citizen, and Parag Vijay Mehta, an OCI, who were married in the United States, where same-sex marriage is legal, in 2017. They sought the same relief as Arora and Khanna, stating that an Indian consulate refused to register their union this year under the Foreign Marriage Act.
Another set of petitioners, Sengupta, Stephens and D’Penha, contended that Sengupta and Stephens been in a loving relationship for nearly 20 years and were married in New York on August 6, 2012, which is recognised in the US, France and Canada.
Since Stephens wished to apply for OCI status under Section 7 A (1)(d) of the Citizenship Act in order to be entitled to multiple entry lifelong visa for visiting India, the couple approached D’Penha to file right to information (RTI) applications to ascertain the legal position on Stephen’s eligibility.
The three moved the high court after “the ministries kept transferring the RTIs back and forth” and no effective response was received.
The Centre has opposed the pleas, saying a marriage in India can be recognised only if it is between a “biological man” and a “biological woman” capable of producing children, strongly opposing the validation of same-sex marital unions.