In wake of the reading down of Section 377, India’s LGBTQIA+ community has become increasingly active in demanding their civil rights, not the least of which is the right to marry and enjoy the same legal rights as heterosexual married couples do. Multiple petitions pertaining to different aspects have been filed before just the Delhi High Court itself. An interim application has also been filed seeking that all proceedings in the matter be live streamed as it is a matter of national importance.
On March 31, a Division Bench of Acting Chief Justice Vipin Sanghi and Justice Navin Chawla asked the Centre to respond to the Interim Application, and listed the matter for May 17. It is noteworthy that the notice was issued in the matter in November 2021 but no response had been filed in the matter even after four months.
Centre’s earlier response
Earlier also Court had issued notice in two Petitions, one related to same-sex marriage Petition and the second filed by transgender person who has undergone sex reassignment surgery.
The Centre responded to above notices that same-sex marriage is neither recognised nor accepted in any of the personal laws or statutory laws in India. Centre in its reply to various petitions seeking recognition of same-sex marriages under the Hindu Marriage Act, the Special Marriage Act and the Foreign Marriage Act, had opposed it saying that pleas are “unsustainable, untenable and misplaced,” as reported by The Print.
During a previous hearing, Adv. Neeraj Kishan Kaul, who is representing one of the petitioners, had said that the issues raised in the petitions are of national importance for LGBTQIA community which constitutes nearly 8% of the country’s total population. As reported by The Hindu, Mr. Kaul sought live streaming of the court proceedings in the matter, saying a vast section of the public was eagerly looking forward to the outcome of these cases and live streaming would enable the court proceedings to reach a larger population.
“Living together as partners and having a sexual relationship by same-sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two,” the Centre had argued, reported The Hindu.
About the Petition
The Petition filed by Abhijit Iyer Mitra is for the recognition of marriages of LGBTQIA couples in Hindu Marriage Act. The Petition urges for the recognition of the right of same-sex couples to get marry, as Section 5 of Hindu Marriage Act does not discriminate between homosexual and heterosexual couples.
Similar Petition about homosexual marriage was filed by Dr. Kavita Arora. The Petition surrounds the fundamental rights to choose one’s own partner for marriage guaranteed under Article 21, also extends to same-sex couples as well. She had sought a direction from the High Court to the Marriage Officer, South East Delhi, for solemnising her marriage with her choice of partner under the Special Marriage Act.
Another similar Petition is filed by an Overseas Citizen of India (OCI), Joydeep Sengupta and his Partner Russell Blaine Stephens. The Petition pleads for a declaration from the Court that “a spouse of foreign origin of an Indian Citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex or sexual orientation of the applicant spouse,” as reported by LiveLaw. This Petition in the support of his pleadings, states that section 7A (1)(d) of the Citizenship Act, 1955 does not discriminate among heterosexual, same-sex or queer spouses, a person married to an Overseas Citizen of India, whose marriage is registered and subsisting for two years, should be declared eligible to apply as a spouse for an OCI card.
Arguments by both sides
Senior Adv. Neeraj Kaul brought to the Court’s notice that the notice was issued four months ago. Senior Advocate Menaka Guruswamy also argued that the matter is already adjourned for last three times and argued that Constitutional rights of the LGBTQIA community that were recognised in Navtej Singh Johar v. Union of India are at peril.
Senior Adv. Neeraj Kaul referred to Swapnil Tripathi Case, where the Centre has already to the Supreme Court that the matters which are of national importance will be streamed live.
As reported by LiveLaw, Senior Adv. Saurabh Kirpal expressed concern about the time that may be required to arrange the infrastructure for live streaming and urged that the Centre be directed to take expeditious steps in that regard. However, the Court assured that sufficient infrastructure is in place.
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