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Delhi HC Seeks Response From Centre On Petitions Seeking Legalisation Of Same-Sex Marriage

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Legalise Same-Sex Marriage: A division bench  at Delhi High Court issued notice to Centre on a petition seeking recognition of same-sex marriages under the Foreign Marriage Act of 1969, the Citizenship Act of 1955, and the Special Marriage Act of 1954.

The bench, comprising of Chief Justice DN Patel and Justice Jyoti Singh, has sought responses from the Ministry of External Affairs, the Ministry of Home Affairs, and the Consulate General of India, New York. The bench has scheduled next hearing on August 27, when the petition will be heard along with a batch of similar pleas.

In the pleas, the petitioners have stated that denying the LGBTQ+ community the right to marry is discriminatory and prejudiced. It leads them to feel like a second class of citizens.

The matter of same-sex marriage recognition was last heard in the court on May 24, when an adjournment was sought due to the prevailing COVID-19 situations at the time by Solicitor-General of India Tushar Mehta, urging that the matter is “not urgent“.

However, petitioners argue that the pandemic has aggravated the hardships of same-sex and queer partnerships who are together without any legal protection.

The Central government had earlier opposed the petitions in question, calling them unsustainable, misplaced, and untenable. Nonetheless, the Delhi HC has decided to open its ears and take a step towards implementing the recognition of same-sex marriages.

Activists have spoken up on the matter and asked the High Court why India should be an exception when many other countries have successfully accepted same-sex marriages and even manifested a legal space to protect non-heterosexual couples. They also called the move of not giving recognition is a clear violation of the right to equality regulation guaranteed under the constitution.

Indian laws and recognition of same-sex marriages

Marriages in India are so far governed by regional and religious laws such as the Hindu Marriage Act (1995), the Indian Christian Marriage Act (1872), and the Muslim Personal Law (Shariat) Application Act (1937) among other acts. While same-sex and queer unions are not legally registered or recognised, India does not lack judicial support for such alliances.

The Madurai Bench of the High Court of Madras employed a constructive and purposive interpretation of a particular case, by stating that the term “bride” under the Hindu Marriage Act includes intersex persons or transwomen who identify themselves as women.

Petitioners stated that the Special Marriage Act (1954), which substantiates unions for people of India and all Indian nationals in foreign countries irrespective of the religion or faith followed, can be amended to include legal recognition for same-sex marriages as well.


Suggested Reading: 

“No One Dying Without Marriage Certificates” Centre Tells Delhi HC On Same Sex Marriage Plea

In Depth: Petition to Legalise Same Sex Marriage- Who Does it Leave Behind?

Legalising Same Sex Marriages- is it what the Queer Community wants?