Same-sex marriage: Delhi HC seeks Centre’s response on two petitions, says ‘laws are gender neutral’

The Delhi High Court on Wednesday sought the Centre’s response on two separate petitions by same-sex couples for the legal recognition of marriage regardless of the gender identity and sexual orientation, PTI reported. The petitioners said that the Special Marriage Act and the Foreign Marriage Act should be interpreted to also apply to the marriages of same-sex couples.

Vaibhav Jain and his partner Parag Mehta were denied certificate of registration of their marriage under the Foreign Marriage Act by the Consulate General of India in New York, while Dr Kavita Arora and her partner Ankita Khanna were not allowed to enter the south district magistrate’s building in East Delhi to seek solemnisation of their marriage under the Special Marriage Act, according to Live Law.

Senior advocate Menaka Guruswamy, appearing for the petitioners, argued that multiple Supreme Court judgements guarantee right to human dignity and privacy to same-sex couples. She also pointed out that sexual orientation cannot be grounds for discrimination. Guruswamy said this amounts to “disrobing the same-sex couples of their inherent dignity” and that authorities in the cases have denied petitioners their rights.

“We would like to be recognised as full human beings,” Guruswamy said. Lawyers Arundhati Katju and Guruswamy had represented the petitioners seeking to decriminalise homosexual activity between consenting adults in India.

A bench of Justices Rajiv Sahai Endlaw and Asha Menon issued notice in the matter and fixed the cases for next hearing on January 8, 2021. During the hearing, advocate Rajkumar Yadav, one of the counsels for the Centre, maintained that such a situation has not arisen in the 5,000 years of Sanatan Dharma.

“The laws are gender-neutral,” Menon told Yadav. “You please try to interpret the law for the citizens of Sanatana Dharma in the country. This is not adversarial litigation. I request that counsel for UOI [Union of India] not treat it as adversarial. This is for the right of every citizen of the country.”

The Centre’s other standing counsel, advocate Kirtiman Singh, agreed with Menon that the matter cannot be treated as adversarial. “This matter merits notice, we will file a reply,” he said.

Last month, Solicitor General Tushar Mehta had opposed a petition in the Delhi High Court seeking to recognise the right of same sex couples to get married, saying that Indian culture does not recognise such a concept. Mehta, however, clarified that it was his analysis of the statutory regime and that there was no such instruction from the Centre.

A bench comprising Chief Justice DN Patel and Justice Prateek Jalan told him that they needed to examine the petition with an open mind. “Changes are happening around the world,” the court had said.