- ‘This right applies with full force to same-sex couples, just as it does to opposite-sex couples.’
A court in New Delhi has heard how India’s failure to allow same-sex marriage breaches its constitution.
The claims came as the New Delhi High Court started to hear two cases.
In one, two women say officials denied their right to wed under the Special Marriage Act (SMA). The act became law in 1954 and allows Indians to marry whatever their caste or religion.
Meanwhile the court is also hearing the case of two men who tried to register their wedding in the US under India’s Foreign Marriage Act (FMA).
The petitioners say the ‘nonrecognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfilment of lesbian, gay, bisexual, transgender and queer couples’.
The court’s Chief Justice DN Patel and Justice Prateek Jalan have agreed to listen to the case with an open mind. While noting they hadn’t made a legal decision yet, they commented ‘changes are happening across the world’.
However India’s Solicitor General Tushar Mehta is opposing the LGBT+ petitioners. He said: ‘Our culture and law don’t recognize the concept of same-sex marriages.’
The case comes two years after the Supreme Court of India struck down the British colonial law against homosexuality in India. The scrapping of the anti-gay law – Section 377 – was the single biggest moment of legal liberation in LGBT+ world history.
Ever since, LGBT+ campaingers in the country have promised to keep fighting for true equality and acceptance. And access to same-sex marriage has emerged as a major battleground.
Denied ‘a bundle of rights’
Senior advocate Menaka Guruswamy, appearing for both couples, said the SMA and FMA are civil laws applying to all kinds of couples. They are therefore different to religious laws or legislation based on Indian customs. As such, the couples say the laws must also allow them to wed.
The two women – Kavita Arora and Ankita Khanna – have lived together for eight years. They are part of a team that built north India’s leading clinic for mental health and learning disabilities for children and young adults.
Their petition says they are in love with each other and share their lives but are unable to marry as a same sex couple.
The pair, aged 47 and 36, say their inability to marry denies them important rights which opposite-sex couples take for granted. They can’t own a house, open a bank account or get family life insurance.
In their plea they say:
‘Marriage is not just a relationship between two individuals – it brings two families together.
‘But it is also a bundle of rights. Without marriage, the petitioners are strangers in law. Article 21 of the Constitution of India protects the right to marry a person of one’s choice.
‘This right applies with full force to same-sex couples, just as it does to opposite-sex couples.’
Unable to travel
The men – Vaibhav Jain and Parag Mehta – have been together since 2012 and married in the United States in 2017. But when they went to the Indian consulate to register under the FMA, it turned them away as they are a same-sex couple.
They say: ‘The Indian consulate would have registered the marriage of any similarly placed opposite sex couple.’
Like the women, they say the failure to register them as married denies them rights. During the COVID-19 pandemic, they have not been able to travel as a married couple to India and spend time with their families.
They say that when the consulate turned them away, it violated their rights. And they add:
‘The Foreign Marriage Act ought to be read to apply to same-sex marriages and is unconstitutional to the extent it does not do so.’
First time in 5,000 years
The court has now asked the Indian government and the consulate to reply to the couple’s claims. The judges set the next hearing for 8 January 2021.
Rajkumar Yadav, representing the central government, said this situation was a first in 5,000 years of Indian civilization.
However, the New Delhi court has made LGBT+ legal history before.
Unlike in other countries, decisions of a high court on the constitutionality of a law apply throughout India. So if New Delhi court decides for same-sex couples, the ruling would apply across India, not just in their states.
Moreover, New Delhi’s high court has a track record of this – in favor of LGBT+ people. In 2009, it struck down Section 377 – and therefore technically made gay sex legal.
However India’s Supreme Court overruled this decision in 2013. It wasn’t until 2018 that a larger bench of Supreme Court justices re-examined the issue, ruling in LGBT+ people’s favor.