Updated: July 7, 2021 7:54:46 am
THE DELHI High Court on Tuesday issued notice to the Centre in a petition seeking a declaration that the right to legal recognition of a same-sex marriage is a fundamental right under Articles 14, 15, 19 and 21, irrespective of a person’s gender, sex or sexual orientation.
The division bench of Chief Justice D N Patel and Justice Jyoti Singh listed the petition for hearing on August 27 along with similar petitions seeking recognition of same-sex marriages under Hindu Marriage Act, Foreign Marriage Act and Special Marriage Act. The fresh petition has been filed by a married same-sex couple Joydeep Sengupta and Russel Blaine Stephens along with rights activist Mario Leslie Dpenha.
Sengupta, who is an Overseas Citizen of India, and his husband Stephens in the petition stated that they met in New York in 2001 and got married on August 6, 2012 in New York. Stephens, a US citizen, according to the plea, wishes to apply for OCI status under the Citizenship Act as a spouse of an OCI cardholder.
The petition argues that since the Consulate General of India in New York has already denied registration of a same-sex marriage in a case, Stephens fears that his application for OCI status as well as the request for apostilization of the marriage certification – a requirement in the application process – will not be accepted.
Stating that consensual sexual acts between persons of the same sex have already been decriminalised by the Supreme Court, the petition contends that “even though Indian law is silent on the recognition of same-sex marriages, it is a settled principle that where a marriage has been solemnised in a foreign jurisdiction, the law to be applied to such marriage or matrimonial disputes is the law of that jurisdiction. Thus, a marriage like that of Petitioners Nos.1 and 2, being validly registered under US law, must necessarily meet the requirements of the term ‘registered’ under Section 7A(1)(d) of the Citizenship Act”.
The petition also seeks a declaration that the exclusion of same-sex marriages under the Foreign Marriage Act and the Special Marriage Act violates Articles 14, 15, 19 and 21 of the Constitution.
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