Supreme Court issues notice on petition by gay couple seeking registration of their marriage

The couple is seeking the registration of their marriage under the Hindu Marriage Act and the Foreign Marriage Act, on the grounds that prohibiting the same is in violation of their fundamental rights under Articles 14, 15, 19 and 21 of the Constitution.

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THE Supreme Court on Wednesday issued notice on a petition filed by a gay married couple seeking registration of their marriage under the Hindu Marriage Act, 1955 and the Foreign Marriage Act, 1969, who were denied registration on account of their being a gay couple. The court has tagged the matter with a batch of petitions on a similar issue in which it had issued notice on November 25. A bench of Chief Justice of India ('CJI') Dr. D.Y. Chandrachud and Justice P. S. Narasimha issued notice to this effect.

The bench was hearing a petition filed by Sameer Samudra and Amit Gokhale, who married on September 18, 2010 and were denied registration of their marriage under the Hindu Marriage Act by the Registrar of Marriages.

The bench has also issued notice on a transfer petition filed by another gay couple – Avita Arora and Ankita Khanna – seeking the transfer of their petition from the Delhi High Court to the Supreme Court. Senior advocate Dr. Maneka Guruswamy appeared for them.

Appearing for Samudra and Gokhale, senior advocate Anand Grover also submitted that the matter concerning same-sex marriage should be live-streamed since lots of people are interested in the matter. Responding to the request, CJI Dr. Chandrachud said that he would consider the request when the matter is taken up for hearing.

In their petition, the gay couple have sought a declaration from the court to the effect that persons belonging to the LGBTQIA+ community have the same right to marriage as their heterosexual counterparts and a denial, therefore, is violative of the rights guaranteed under Articles 14, 19 and 21 of Part III of the Constitution.

The petition avers that on August 31 this year, petitioners wrote to the Indian Embassy in Washington, D.C. to register their marriage under the Foreign Marriage Act. After more than a month of correspondence, the Indian embassy stopped responding. When Samudra, in good faith, declared that they were a same-sex couple, his request was not only denied, but the couple was subjected to degrading treatment at the embassy in front of the employees of the embassy and the other persons waiting at the embassy.

The petitioners state that the Indian consulate would have registered the marriage of a heterosexual couple but did not do the same for the petitioners. In so doing, the petitioners assert, there was a violation of the petitioners' rights under Articles 14, 15, 19 and 21 of the Constitution, which the Supreme Court in Navtej Singh Johar versus Union of India (2018) had held are guaranteed to LGBT and non-LGBT Indians with equal force.

The petitioners have urged the court to read the Hindu Marriage Act and the Foreign Marriage Act liberally to apply to marriages between members of the LGBTQIA+ community, as they do to their cisgender, heterosexual counterparts.

Referring to Navtej Singh Johar, the petition states that consensual sexual acts between adults cannot be a crime, deeming the prior legal position "irrational, arbitrary and incomprehensible."

"Choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation", the petition states, citing Navtej Singh Johar.

On November 25, a bench headed by CJI Dr. Chandrahcud issued notice to the Union Government on two petitions seeking legalisation of same-sex marriage in India under the Special Marriage Act. The notice was issued by a division bench headed by CJI Dr. Chandrachud on petitions filed by Supriyo Chakraborty and Abhay Dang, and Parth Phiroze Mehrotra and Uday Raj Anand.

As many as nine petitions are pending before the Delhi High Court and one before the Kerala High Court seeking recognition of same-sex marriage. At the Kerala high court, the Union Government made a statement that it would take steps to get all the writ petitions transferred to the Supreme Court. This factor weighed with the Supreme Court in issuing the notice on the petitions filed before it.