On 6th September 2018, the Supreme Court of India passed a historic judgment of abolishing Section 377, in order to decriminalize homosexuality in the country.
It was a huge step that declared Section 377 as unconstitutional but was the idea of love that isn’t heteronormative, recognized? Up until now, there is no marital law in India that recognizes same-sex marriage.
Two years later, two same-sex couples initiated a discourse and contended that the lack of judicial acceptance of them as a ‘couple’ under Indian laws was a violation of their constitutional rights.
Two separate PILs were filed that sought that the Special Marriage Act and Foreign Marriage Act to be applied to all couples regardless of their gender identity and sexual orientation.
“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 stated.
The couple said “The marriage officer would have solemnized 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”
On 14th October 2020, the hearing of the plea was scheduled in the Delhi High Court.
The good news is that the case has not been declared adversarial, which means there is no person or party opposing the litigation.
A bench of Justices Rajiv Sahai Endlaw and Asha Menon said that they had no doubts as to the maintainability of the petitions but wanted answers to certain doubts.
But according to the bench, both the Foreign Marriage Act and the Special Marriages Act did not provide for what is marriage.
“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.
They seek a fresh and clear interpretation of marriage under the law, in favour of same-sex couples.
Justice Rajiv Sahai Endlaw and Justice Asha Menon issued notices to the authorities and posted the matter for further hearing on January 8, 2021.
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, to which bench replied-
“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”.
Also Read: This College Student Is On A Mission To Help The LGBTQ Community Build Dignified, Regular, Formal Income For Themselves & He Has Already Taken Action
Recognition Not Same As Decriminalization
According to the reports, “Vaibhav Jain and his partner Parag Mehta were denied a 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 solemnization of their marriage under the Special Marriage Act.”
“The petitioners’ relationship is not recognized when they need to apply for address verification of their passport or apply for a joint bank account or co-own assets,” the plea stated.
The absence of a legal structure to back their relationship was creating a lot of problems in other economical and social aspects of their life. Marriage provides a bundle of rights to a couple, they simply wish to exercise those rights.
The other couple got married in the United States, but their marriage registration was denied under the FMA as it excluded same-sex marriages.
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 decriminalized adult, consensual same-sex relations in 2018.”
The two petitioners were represented by senior advocate Menaka Guruswamy and advocate 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 criminalized homosexuality in 2018.
Senior advocate Menaka Guruswamy 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 have denied petitioners their rights.
Advocate Guruswamy argued:
“I follow that trail of couples who come for protection to this Court. I have seen the High Court protect multiple couples who were put at jeopardy because of inter-caste marriages, inter-faith marriages… I am seeking the same protection…Multiple judges have said that sexual orientation cannot be grounds for discrimination.”
“We are challenging the Constitutionality of the reading of this statute… My submission is simply this. The Special Marriage Act prohibits who “cannot enter into a marriage”… This is what the statute conceives. It is not here to define “marriage.” It is only here to define “who cannot marry.”
“We would like to be recognized as full human beings,” Guruswamy added.
Menaka took to Twitter to share her news.
Some people from the LGBTQIA community have raised concerns about the inclusivity of other members (except the cisgender homosexuals) in this step of legalizing same-sex marriage.
The positive response of the court nevertheless feels like a ray of hope for the huge milestone to be conquered, with many more to go.
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This post is tagged under: Delhi high court, article 377, same sex marriage, Supreme court, homosexuality, human rights, special marriage act, foreign marriage act, legal rights, Menaka Guruswamy, public interest litigation, petition, hearing, judgment, marriage, discrimination, decriminalization, recognition