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Delhi High Court disapproves Centre’s comments in same-sex marriages case

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The Delhi High Court on Tuesday expressed discontentment with certain “highly objectionable comments” made by the Centre in its affidavit opposing the demand for live-streaming of proceedings in a case for recognition of same-sex marriages in the country.

A division bench comprising Acting Chief Justice Vipin Sanghi and Justice Navin Chawla was dealing with a bunch of petitions seeking legal recognition of marriage between same-sex, queer or non-heterosexual persons under the Special Marriage Act, 1954 and other laws.

An application was moved in November last year by three professionals living in Mumbai and Karnataka in the plea filed by one Abhijit Iyer Mitra, seeking live-streaming of proceedings in the instant cases on the ground that the issue at hand is of great national importance in particular for the LGBTQIA+ community, which constitutes around 8 per cent of the country’s population.

The Centre in its affidavit has termed the application for live-streaming of proceedings as malafide moved with an intent to invite unwanted public attention and sympathy on the issue.

During the course of hearing, Senior Advocate Neeraj Kishan Kaul, representing the applicants, expressed anguish over the Centre’s response and submitted that the government’s affidavit demeans the rights of a particular segment of society. “You may agree or disagree on live-streaming, that’s another issue. But please don’t demean the people who have struggled for years till the constitutional bench of the Apex Court recognized their rights and bestowed on them rights which are guaranteed under the Constitution,” he argued.

At this point, the Bench asked Advocate Harish Vaidyanathan, representing the Centre, to examine the affidavit which is not yet on record and file a better one. “As a counsel, it is your responsibility to read it and say. If there is something objectionable, you are not obliged to file it. You should be able to advise your client accordingly. Don’t do a mindless exercise,” the Court orally remarked.
The matter is slated for next hearing on August 24, 2022.

The Delhi High Court is seized of a bunch of pleas on the issue at hand. One such petition is filed by an overseas citizen of India, Joydeep Sengupta, and his American gay partner Blaine Stephens, for declaration of applicability of Section 7A(1)(d) of the Citizenship Act, 1955, which entitles a spouse of foreign origin of an OCI cardholder to apply for OCI status in the country, to non-heterosexual, same-sex or queer spouses.

In addition, the plea 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.

Another petition filed by a group of non-heterosexual persons seeks declaration that a marriage solemnized between “any two persons”, regardless of any gender or sexuality, be declared legal under the Special Marriage Act, 1954. Alleging that the Indian Constitution invalidates any gender and sexuality based preconditions for marriages solemnized under SMA, the plea by one Udit Sood and others states, “The object of the Special Marriage Act, 1954, is to expansively provide access to the fundamental right to marry, notwithstanding societal prejudices. Conditioning marriage on compliance with outdated and unscientific heteronormative values and binary notions of gender, excludes LGBTQ+ individuals.”

The Centre had vehemently opposed the petitions earlier on the pretext that though the Apex Court’s decision in Navtej Singh Johar’s case decriminalized sexual relationship among consenting same-sex adults, it does not accord legal recognition to marriage between non-heterosexual persons.

UDIT SOOD & ORS. Vs. UNION OF INDIA & ANR.” W.P.(C) 2574/2021 and other matters 

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