In the September of 2018, India took a progressive step towards securing the rights of the LGBTQ community when the honourable Supreme Court came up with a monumental judgement which struck down certain provisions of Section 377 of the IPC and decriminalised homosexuality.
Naturally, since then the gay rights activists and members of the civil society have been preparing for the next step i.e. the legalisation of same-sex marriage in India. Marriage is a sacred and traditional institution in our country, and therefore is governed by personal laws, rather than civil laws. So, the question of same-sex marriage has to be dealt with utmost care maintaining the right balance between tradition and modernisation.
The legislators, in the past, have already dealt with the deadlock between tradition and modernisation when it came to the conduct and legality of marriages in India. The questions then were not about marriage between adults of the same sex, but about marriage between adults belonging to different castes and faiths. Subsequently, we came up with The Special Marriage Act, 1954 to give way to the holy matrimony without having any parties to renounce their religion or alter their faith. Fifteen years later, in 1969, we came up with The Foreign Marriage Act to further safeguard Indian citizens who conduct their marriages outside the territory of India.
Therefore, The Special Marriage Act and The Foreign Marriage Act are two important pieces of legislation which deal with marriages in India which are outside the purview of personal laws. Now, the question came in front of the Delhi High Court regarding the legality of same-sex marriages under the above mentioned legislations.
Two same-sex couples submitted pleas in front of the Delhi High Court seeking solemnisation and recognition of marriages under The Special Marriage Act and The Foreign Marriage Act respectively.
The first couple – Kavita Arora, and Ankita Khanna – have been living together as a couple since the last eight years. They both wanted sanctification of their companionship in front of the marriage officer (the sub-divisional magistrate, South East Delhi, Kalkaji) under the Special Marriage Act, 1954, but were denied as they both are of the same sex.
Services like opening a joint bank account, buying family health insurance, or securing address proofs, which are trivial and easily accessible for heterosexual couples, are a struggle for us, the petitioners said.
Another same-sex couple, both men, Vaibhav Jain, an Indian citizen, and Parag Vijay Mehta, an overseas citizen of India who got married in the United States. They wanted their marriage to be recognised in India under The Foreign Marriage Act, but the Indian consulate refused to register their union. They were prevented from travelling to India as a married couple during the Covid-19 pandemic.
The Delhi HC enquired from the counsel of the petitioners whether they have challenged the concept of marriage in their pleas. The HC stated that the word ‘marriage’ is not defined in the 1954 and 1969 legislation.
“Please understand that till the concept of marriage is not challenged, it would not be able to move forward in the matter because marriage is not defined. There is otherwise no question on the maintainability of the pleas but in both the Special Marriage Act and Foreign Marriage Act, the term marriage has not been defined,” said the court.
It was pointed out by advocate Rajkumar Yadav, one of the counsel representing the Centre, that a situation like this has not been faced in the 5000 years old history the Sanatan Dharam. To which Justice Menon replied, “We may shed our inhibition. The laws are gender-neutral. You please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not an adversarial litigation. This is for the right of every citizen of the country.”
The two-judge HC bench consisting of Justice Rajiv Sahai Endlaw and Justice Asha Menon pushed the matter for next hearing on January 8, 2021, and has asked the Centre’s opinion about the case.
This issue would require a detailed reply, the Central Government standing counsel Kirtiman Singh said.