The Delhi High Court Bench comprising of Justice RS Endlaw and Justice Asha Menon, issued a notice in the matter and fixed the cases for the further hearing.
In a petition by two same-sex couples for the legal recognition of same sex marriage. Urging that the Special Marriage act and the Foreign Marriage Act be interpreted to also apply to the marriage of same-sex couples.
The Delhi High Court Bench comprising of Justice RS Endlaw and Justice Asha Menon, issued a notice in the matter and fixed the cases for the further hearing.
Justice Asha Menon said:
“The laws are gender-neutral. You please try to interpret the law for the citizens of Sanatana Dharma in the country. This is not adversarial litigation. I request that counsel for UOI (not treat it as adversarial). This is for the right of every citizen of the country.”
One of the same-sex couple approached the Sub-Divisional Magistrate for marriage to which they were refused and the ground that they were of same-sex and were denied entry into the building. So they criticized the prevailing interpretation of The Special Marriage Act.
Another same-sex couple, where they got married by an Indian Judge in New York, but lately they were denied the registration of their marriage under The Foreign Marriage Act by the Indian Consulate in New York.
It was also asserted that the issue is not a matter of customary rights, but rather of civil rights that were sought to be recognized.
Justice RS Endlaw pointed out that the definition of “marriage” in Indian law has not been statutorily defined, which meant that authorities generally relied on its customary interpretation. He observed,
“Under Indian law, it remains customary. Because there was no inter-faith marriage, we came up with a special statute. If any corrective measures are to be taken, it should be taken at this stage. Have you considered it from that point of view?… We have otherwise no doubts as to maintainability of the petitions.”
Senior Advocate Guruswamy who was appearing on behalf of first couple responded:
“The Special Marriage Act, Foreign Marriage Act is not based on customary law. It is statutory….We are not on customary or religious law. We are on civil law.”She added,
“I follow that trail of couples who come for protection to this Court. I have seen the High Court protect multiple couples who were put at jeopardy because of inter-caste marriages, inter-faith marriages… I am seeking the same protection…Multiple judges have said that sexual orientation cannot be grounds for discrimination.”
Notice in the matter has been accepted by both the Union of India and the Government of Delhi.
