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Delhi High Court issues notice on plea by same sex couple from abroad seeking recognition of their marriage in India

The plea also prays for declaration of the Foreign Marriage Act, 1969 as also the the Special Marriage Act, 1954 as violative of Articles 14, and 21 of the Constitution to the extent that these enactments excludes same-sex marriages or queer marriages from its purview.

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The Delhi High Court today has issued notice in a plea filed by a same sex married couple residing abroad, seeking legal recognition of marriage between same sexes, queer or non-heterosexual persons under the Citizenship Act, 1955, Foreign Marriage Act, 1969, and the Special Marriage Act, 1954.

The Division Bench comprising Chief Justice D.N. Patel and Justice Jyoti Singh directed the matter to be tagged with other similar matters. The matter will be taken up on August 27 with related matters.

The petition has been filed by Joydeep Sengupta, an India-born Canadian citizen and OCI cardholder; his gay partner Blaine Stephens, who is an American citizen; and Mario Dpenha, a queer rights academic and activist from India.The plea seeks declaration of applicability of S.7A(1)(d) of the Citizenship Act, 1955 to heterosexual, same-sex or queer spouses.The plea prays for restraining the Consulate General of India in New York from declaring a spouse of an OCI applying for an OCI card to be ineligible for the same merely on the ground that they are in a same-sex marriage or queer (non-heterosexual) marriage.

The plea also prays for declaration of the Foreign Marriage Act, 1969 as also the the Special Marriage Act, 1954 as violative of Articles 14, and 21 of the Constitution to the extent that these enactments excludes same-sex marriages or queer marriages from its purview.

Furthermore, the plea seeks the right to legal recognition of a same sex marriage or queer marriage be declared a fundamental right under Articles 14, 15, 19 and 21 of the Constitution; and that all such marriages be legally recognized in India.

According to the plea, Sengupta and Stephens got married in New York on August 6, 2012, and are recognized as a legally married couple in the US, France, and Canada, the countries where they have primarily lived and worked in the last 20 years. The plea states that the couple have a certificate of registration of marriage issued by the Office of the City Clerk of New York dated August 6, 2012 and apostille certificate of the same date issued by the Special Deputy Secretary of State, New York.It is averred that the petitioners are expecting their first child in July 2021, and would like their child to have regular relationship with Sengupta’s parents residing in India, for which Stephens wishes to apply for OCI status under Section 7A(1)(d) of the Citizenship Act, as the spouse of an OCI Cardholder, in order to be entitled to grant of multiple entry lifelong visa for visiting India. The plea relies, along with a catena of other judgments, on the decision of Hon’ble Supreme Court in “Navtej Singh Johar Vs. Union of India” (2018) 10 SCC 1, wherein the Court has decriminalized the consensual sexual acts between persons of the same sex.

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The plea states, “Because one’s right to marry an individual of their choice is a freedom accorded to every person under Article 19, and read with Article 21, their right to privacy allows them the inviolable right to determine how this freedom is exercised.”

In a batch of similar pleas, the Delhi High Court vide its order dated May 24, 2021, directed the matter to be listed today, after Solicitor General Tushar Mehta pointed out that the subject-matter of these petitions was not in the roster of the Bench before which the matters were marked.

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