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Supreme Court Issues Notice On Plea To Recognise Same-Sex Marriage Under Hindu Marriage Act & Foreign Marriage Act

Padmakshi Sharma
14 Dec 2022 9:57 AM GMT
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The Supreme Court on Wednesday issued notice in a petition filed by a same-sex couple seeking legal recognition of their marriage in India. The petitioners in this case– an Indian national and a Citizen of the United States of America (USA) married and registered their marriage in the USA in 2014 and now seek to register their marriage under the Foreign Marriage Act, 1969. The matter was listed before a bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha.

Senior Advocate Anand Grover appeared for the petitioners. Last month, the Court had issued notice on a batch of petitions seeking recognition of same-sex marriage under the Special Marriage Act 1955.

The petitioners seek a declaration to the effect that the persons belonging to the LGBTQIA+ Community have the same right to marriage as their heterosexual counterparts. The petition submits that denial of such a declaration is violative of the rights of the LGBTQIA+ Community guaranteed under Articles 14, 19, and 21 of Part III of the Constitution of India. In order to support their argument, the petitioners have relied upon various judgements of the Supreme Court including Navtej Singh Johar v. Union of India, (2018) and NALSA v. Union of India, 2015.

As per the petition, the couple had attempted to register their marriage in Pune, India, under the Hindu Marriage Act, 1955 in 2021 before the Registrar of Marriages Act. However, the Registrar refused to register their marriage. In 2022, they wrote to the Indian Embassy in Washington DC to register their marriage under the Foreign Marriage Act. After more than a month of correspondence, the Indian Embassy stopped responding when the petitioners declared that they were a same-sex couple. Following this, their request was denied and the petitioner was subjected to degrading treatment at the embassy.

In the backdrop, they seek a declaration that they have a right to register their marriage under Section 5 of the Hindu Marriage Act, 1955, and under Section 17 of the Foreign Marriages Act, 1969. They also challenge the refusal of the Indian Embassy to recognize their marriage as unconstitutional.

While tracing the history of same-sex marriage in India, the petition submits–

"Works of scholars like Saleem Kidwai and Ruth Vanita tell us that Ancient Indian texts and inscriptions and paintings on temple walls that clearly homosexuality is not an aberration imported from modern Europe or medieval West Asia, but that in fact queerness had a large and looming presence in India. It was only the modern era, after the British direct rule in India, in after the first war of independence in 1857, that non-heterosexual sexual relations were criminalized."

Stating that local notions previously accepted in India were only deemed barbaric as the British rule grew more powerful in the Indian subcontinent in the early 19th century, the petition submits that it was the British that imposed their idea of a 'Victorian, heteronormative view of sexual and marital relationships' through laws including the Section 377 of the Indian Penal Code, 1860.

Drawing from international jurisprudence, the petition has stated that same sex marriage is legally performed and recognized (nationwide or in some parts) in about 32 countries. The petition has also highlighted provisions of various international conventions which India is a signatory to, in order to highlight the acceptance of same-sex marriages universally. For instance, Article 16 of the Universal Declaration of Human Rights states–

"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution."

The petition also argues that the right to marry a person of one's choice is well established in the Indian law as well. It states that even though the right to marry is not recognised as a fundamental right under the Indian constitution, or any other statute, the Supreme Court has recognised it as a fundamental right through a variety of decisions. The judgement in Shafin Jahan v. Asokan K.M., has been cited as an example. As per the petition, CJI DY Chandrachud's opinion in the judgement states–

"Deprivation of marital status is a matter of serious import and must be strictly in accordance with law...The right to marry a person of one's choice is integral part of Article 21 of the Constitution."

The petition argues that the non-recognition of the right of LGBTQIA+ persons to get married to individuals of the same sex as theirs is a violation of Article 14. the petition also submits that the non-recognition of the right to same sex Marriage deprives persons of the LGBTQI+ communities of social recognition of their unions and therefore amounts to them being treated as an inferior class of citizens.

"It also has been argued that laws prohibiting same-sex activity, including marriage are justified by the state interest in advancing social morality. However, it is now a well-established principle of law that Social morality must give way to constitutional morality," provides the petition.

Finally, as per the petition, same-sex marriages will not harm traditional families as it would not interfere with procreation or child-rearing within opposite-sex marriage in any manner. However, the lack of recognition of such unions would harm same-sex couples and their children by denying them legal benefits, financial security, and making child-rearing more difficult.

The petition has been drawn by Advocates Hamza Lakdawala and Rohin Bhatt. It has been filed by Advocate Nupur Kumar.


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