The Delhi High Court on Tuesday issued notice to the Central government on a fresh petition seeking legal recognition to all same-sex, queer or non-heterosexual marriages under the Foreign Marriage Act and the Special Marriage Act.
A bench of Chief Justice D.N. Patel and Justice Jyoti Singh gave the order on the plea filed by a married same-sex couple, where one of them is an Overseas Citizen of India (OCI) card holder and his partner a U.S. citizen.
The court tagged the fresh petition filed by Mr. Joydeep Sengupta and Mr. Russell Blaine Stephens to be heard collectively with four other pending petitions on the issue of declaring the Special Marriage Act and Foreign Marriage Act applicable to all couples regardless of their gender identity and sexual orientation.
Mr. Sengupta and Mr. Stephens, at present residing in Paris, said they got married in New York on August 6, 2012, and were recognised as a legally married couple in the U.S., France, and Canada – where they have primarily lived and worked in the last 20 years.
Preparing as parents
They said they were preparing for their new role as parents and expecting their first child in July 2021.
Mr. Sengupta is a Canadian Citizen now and since 2011, he has been an OCI.
Mr Stephens said he wished to apply for the OCI status under the Citizenship Act as a spouse of an OCI Cardholder to enable him to get a multiple entry life-long visa for visiting India.
This, even during the ongoing COVID-19 pandemic induced travel restrictions, would enable Mr. Stephens to travel freely to India where Mr. Sengupta’s family lived – and would be able to spend time with them with his spouse and the baby they were expecting.
Rights activists and advocate Karuna Nundy, representing the couple, said their petition was seeking a declaration that the Foreign Marriage Act and Special Marriage Act be read in accordance with the Constitution.
Seek direction to consulate
The petition sought a direction restraining the Consulate General of India, New York, from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same, merely on the ground that they were in a same-sex marriage or queer (non-heterosexual) marriage.
“The right to marry a person of one’s choice as an essential component of the right to autonomy, privacy within Article 21 has been recognised by a catena of judgments in India,” the petition stated.
Upholding the fundamental right to legal recognition of marriage for the queer, LGBTQIA+ community would ensure that they were not only allowed a peaceful existence without interference by the State, but also bring the couple and the queer community closer to the rights of full personhood, it mentioned.
Centre’s opposition
Earlier, the Centre had opposed any changes to the existing laws on marriage to recognise same-sex marriage, saying such interference would cause “a complete havoc with the delicate balance of personal laws in the country”.
It argued, “Living together as partners and having sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two”.
The court is seized of three separate petitions by same-sex couples and a fourth petition by some individuals seeking recognition to same-sex marriage.
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