Seeking reply from the government on two petitions seeking legalisation of same-sex marriages – one under the Special Marriage Act (SMA) and the other on Foreign Marriage Act (FMA) – the Delhi High Court on Wednesday said the statute is gender-neutral and the Centre must interpret the law in favour of the citizens.
The division bench of Justices Rajiv Sahai Endlaw and Asha Menon, while issuing notice to the Centre and Delhi government, asked them to file their replies within four weeks and said the rejoinders should be filed within four weeks thereafter.
The case was adjourned for next hearing on January 8, 2021.
“We may shed our inhibitions. The very language of the statute is gender-neutral. Please try to interpret the law in favour of the citizens of the ‘Sanatan Dharma’ country,” Justice Menon said. “This (petition) is not adversarial. My request to both counsels from Union of India is that this is not adversarial…”
The judge made the comment in response to a submission made by advocate Raj Kumar Yadav, who appeared on behalf of the Centre. Yadav said, “This is a peculiar situation in the history of Sanatan Dharma. In 5,000 years of this history, this kind of situatio we have not faced.”
Advocate Kirtiman Singh, who also appeared for the Centre, agreed with Justice Menon that the matter was not adversarial and submitted that the government will file a reply.
In one petition, Dr Kavita Arora, a psychiatrist, and Ankita Khanna, a therapist, have sought enforcement of the fundamental right of choice of partner, after their application for solemnisation of marriage under the SMA was rejected by a marriage officer in Delhi’s Kalkaji on the ground that they are a same-sex couple.
The second petition, filed by Parag Vijay Mehta, an OCI card-holder, and Vaibhav Jain, an Indian citizen, who married in Washington D.C in 2017, also seeks direction for registration of their wedding under FMA after they were denied the same by the Consulate General of India at New York.
During the hearing, the court asked whether or not “the concept of marriage in Indian context” has to be the subject matter of challenge, as both laws prohibit a marriage only if it is prohibited as per the customary laws.
However, senior advocate Menaka Guruswamy, appearing for the petitioners, contended that the two laws do not refer to any customary law, and the purpose of SMA in particular is to permit marriages outside customary laws.
The court also asked why the remedy of appeal under FMA was not availed. Guruswamy said that the authorities refused to even entertain the application, and that there is no order of refusal to register the marriage.
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