Thread by @barandbench

Delhi HC to hear today pleas seeking a declaration that the Special Marriage Act and Foreign Marriage should apply to same-sex couples as well.

Petitioners include:

-A same-sex couple denied the right to marry a person of their choice on the grounds of sexual orientation alone
-A same-sex couple who got married in New York, but whose application to register their marriage at the Indian Consulate was refused.

Read more:

Plea filed before Delhi HC to declare that Special Marriage Act applies to same-sex couples

barandbench.com/news/litigatio…

Senior Advocate @MenakaGuruswamy begins submissions for the petitioners.

Tells Bench of Justices Rajiv Sahai Endlaw and Asha Menon that two of the petitions are interconnected.

@MenakaGuruswamy: The petitioners (in one of the petitions) approached the SDM, the relevant Marriage officer (to get married).

They were refused even entry into the building.

Only their lawyer was told that since they were a same-sex couple, they could not marry.

@MenakaGuruswamy: Mr Jain and Mr Mehta (petitioners in the other petition), were married by the highest-ranking Indian judge (in NY)

However, the Indian Consulate, NY refused to register their marriage on grounds of sexual orientation alone.

Guruswamy adds: Clearly they (the SDM, the Indian Consulate) are not aware of the 9-judge ruling in Puttuswamy case, of the Court's ruling in Navtej Singh Johar case that there can be no discrimination on grounds of sexual orientation, in terms of the right to choose partner etc.

Guruswamy: The Indian state violated these Constitutional rights, denied their (petitioners') rights to dignity and expectation of Constitutional morality.

Justice Endlaw poses a query on whether definition of marriage has been challenged. What would marriage be would be defined by customary laws, he observes.

Justice Endlaw: Once the concept of marriage is understood as including "same-sex"... it would be followed in other statutes as well.

Justice Menon asks if any appeal was made to the govt. over the applications that were rejected: What was govt response?

Guruswamy takes Court through events whereby both sets of petitioners were denied an opportunity to present their applications at all on grounds of sexual orientation.

@MenakaGuruswamy: We are not even allowed to trigger the opportunity to make the application/appellate process.

That is what it means to be "right-less"

@MenakaGuruswamy answering Justice Endlaw's query: Special Marriage Act, Foreign Marriage Act is not based on customary law. It is statutory.

Foreign enables a foreign citizen to register in India the marriage already entered abroad, she adds.

Guruswamy: We are not on customary or religious law.

We are on civil law, a statute provided by Indian law for inter-caste, inter-faith, modern couples, a same-sex couple - everything...

Guruswamy: I follow that trail of couples who come for protection to this court. I have seen the HC protect multiple couples who were put at jeopardy because they married across caste lines, faiths etc. I am seeking the same protection.

Guruswamy adds: Multiple judges have said that sexual orientation cannot be grounds for discrimination.

Justice Endlaw: We have otherwise no doubts as to maintainability of the

But the doubts unanswered are that both statutes don't provide for "what is marriage" Any authority under Indian statute would go by "what is marriage."

Justice Endlaw: Marriage is not defined. When something goes against what an authority in India has been seeing for his/her entire life, they won't accept it...Our doubt is that you would encounter this difficulty..

Justice Endlaw: Till the concept of "marriage" is not challenged... Marriage till now has not been statutory. Under Indian law, it remains customary. Because there was no inter-faith, we came up with a special statute.

Justice Endlaw: If any corrective measures are to be taken, it should be taken at this stage. Have you considered it from that point of view?

Guruswamy reads a 2003 case law concerning the extension of the Special Marriage Act to a citizen from the erstwhile State of J&K, although the Act did not extend to J&K.

Guruswamy: We are challenging the Constitutionality of the reading of this statute (Special Marriage Act)

Guruswamy: My submission is simply this. The Special Marriage Act prohibits who "cannot enter into a marriage."

The grounds of prohibition include insanity, inability to give consent, minimum age, degrees of relations, she narrates.

Guruswamy: This is what the statute conceives of. It is not here to define "marriage." It is only here to define "who cannot marry."

On Court's query if there is anyone appearing for the UOI,
Advs Raj Kumar Yadav and Sangita Rai inform that they are appearing for respondents in the two petitions.

Court adds that they had only had this doubt re customary law. The only concern was that the challenge should be complete, rather than ask for additional affidavits.

Guruswamy reads out certain observations made by the Supreme Court in Puttuswamy's case and in Navtej Singh Johar's case.

Guruswamy: Dr Arora and Khanna (petitioners) went with their families. They lead honest, productive, decent lives. They simply want to be recognised as full citizens, to protect each other.

The right to life insurance, to buy a house, to have a bank account, get loans - these are rights that accompany marriage, Guruswamy points out

Guruswamy: Similarly Mr Mehta would like his husband to come to India, to care for parents should something should happen, especially amid the COVID pandemic.

She points out that right now only OCI citizens with a spouse can enter country

@MenakaGuruswamy: We would be like to be recognised as full human beings.

In Sanatana Dharma, in the last 5000 years, this kind of situation we have not faced: Adv Yadav

Justice Menon: The laws are gender-neutral. You please try to interpret the law for the citizens of Sanatana Dharma in the country.

Justice Menon: This is not adversarial litigation, I request that counsel for UOI (not treat it as adversarial). This is for the right of every citizen of the country

Adv Kritiman Singh: This matter merits notice, we will file a reply.

Delhi HC is told that there is another related plea pending before another Bench.

Guruswamy informs that plea pertains to a challenge to the Hindu Marriages Act, and that it is entirely different from the instant cases.

Guruswamy explains: There are no live parties there (in that case) in terms of couples who actually seek the protection. They are not directly affected.

#Breaking: Delhi HC issues notice in pleas seeking to interpret Special Marriage Act, Foreign Marriage Act to include same-sex marriages.

Court orally observed that case should not be treated as adversarial, that it concerns rights of citizens. Matter fixed to be heard on Jan 8

Notice has been accepted today by UOI and the Delhi Govt. Affidavits to be filed within 4 weeks. Rejoinder after 4 weeks thereafter. Matter listed for hearing on January 8

Central Govt Counsel, Kirtiman Singh says Court has rightly said that the matter should not be adversarial

Laws are gender-neutral, try to interpret them for the rights of citizens: Delhi HC issues notice in pleas to recognise same-sex marriage #SameSexMarriage #GayMarriage #DelhiHighCourt @MenakaGuruswamy @arundhatikatju

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