Delhi HC asks Centre to respond to plea for live streaming of proceedings on same-sex marriage petitions

LGBTQ, Delhi HC, same sex marriage

The Delhi High Court on Tuesday sought the Centre’s response on a plea seeking live streaming of proceedings on petitions to recognise same-sex marriages under the special, Hindu and foreign marriage laws.

A bench of Chief Justice D N Patel and Justice Jyoti Singh granted time to the Centre’s counsel to take instructions on the issue and file reply, listing the matter for further hearing on February 3.

The court was hearing a batch of petitions filed by several same sex couples, seeking a declaration recognising same sex marriages under the special, Hindu and foreign marriage laws.

Senior advocate Neeraj Kishan Kaul, representing some of the petitioners, submitted that in view of the rights involved, live streaming of proceedings is essential as it concerns seven to eight per cent of the total population of the country.

He further said it a matter of great national and constitutional importance and live streaming can host a larger population.

Kaul submitted that his clients represent a section of public who are eagerly looking forward to the outcome of these cases and though a large number of people want to attend the proceedings, they are unable to do so due to limitation of technical platforms.

He said the Supreme Court and Attorney General of India and the Bar have been in favour of live streaming of proceedings which are in national interest and these petitions fall in this category.

He gave examples of High Courts of Gujarat, Odisha and Karnataka which have taken a lead and formulated rules for live streaming of proceedings.

The high court also issued notice and sought the Centre’s reply on two separate petitions, represented through senior advocate Mukul Rohatgi, with one filed by two lesbian women who have already solemnised their marriage at Varanasi in February 2018 and are seeking recognition of marriage and the other filed by a transgender person who has undergone a sex reassignment surgery and entered into a civil union with her husband in South Africa and seeks recognition of the marriage.

The application for live streaming of proceedings was filed in the pending petition filed by Abhijit Iyer Mitra.

Mitra and three others have contended that marriages between same sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise same sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).

The two other pleas are — one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same sex marriages and the other filed by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).

Another petition seeks to allow a foreign-origin spouse of an Overseas Citizen of India cardholder to apply for OCI registration regardless of gender or sexual orientation.

Solicitor General Tushar Mehta, representing the Centre, had earlier argued that a spouse’ means either husband or wife and marriage’ is a term associated with heterosexual couples and there was no need to file a specific reply regarding the Citizenship Act.

The law as it stands…personal laws are settled and marriage which is contemplated to be is between biological man and biological woman, he had adding that there is some misconception of petitioners regarding the Supreme Court’s verdict decriminalising consensual homosexual act.

The petition filed by equal rights activists Mitra, Gopi Shankar M, Giti Thadani and G. Oorvasi contended that homosexual sex has been decriminalised by the apex court but same-sex marriages are still not being allowed under the provisions of the HMA.

The two women, who were represented by senior advocate Maneka Guruswamy and lawyers Arundhati Katju, Govind Manoharan and Surabhi Dhar, have said in their plea that they have been living together as a couple for 8 years, in love with each other sharing the highs and lows of life, but unable marry as they are a same sex couple.

The women, aged 47 years and 36 years, have contended that not being allowed to get married has denied them several rights — liking owning a house, opening a bank account, family life insurance — which opposite sex couples take for granted.

The two men, also represented by the same set of lawyers, were married in the United States, but their marriage was not registered under the FMA by the Indian consulate as they were a same sex couple.

The couple, who was in a relationship since 2012 and got married in 2017, has also claimed that during the COVID-19 pandemic, non recognition of their marriage by the laws here continues to disentitle them to travel as a married couple to India.

Central government has opposed same-sex marriage on the ground that marriage in India is not just a union of two individuals but an institution between biological man and woman.

It has also said that judicial interference will cause “complete havoc with the delicate balance of personal laws”.

Any interpretation other than treating a husband as a biological man and a wife as a biological woman will make all statutory provisions unworkable, it has said, adding that marriage is essentially a socially recognized union of two individuals which is governed either by uncodified personal laws or codified statutory laws.

(Cover: Representational Image// Credit – Wikimedia Commons)

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