Same-sex couple approaches Delhi HC seeking recognition of marriage

New Delhi: A same-sex couple has approched the Delhi High Court seeking legal recognition of their marriage under the Foreign Marriage Act, 1969. The petitioners, an Indian citizen and an Overseas Citizen of India, are two gay men who got married in Washington DC, United States in 2017.

The petitioners claimed that they had approached the Indian consulate at New York to register their marriage under the Foreign Marriage Act, 1969 on March 5, 2020, but the consulate refused the application for registration on grounds of their sexual orientation.

The Indian consulate would have registered the marriage of any similarly placed opposite sex couple, the plea stated.

The petition was listed before a single-judge bench of Justice Navin Chawla on Thursday, who referred the matter to an appropriate division bench for next week.

The petitioners submitted that the respondents' refusal to register the marriage of the petitioners, who are a samesex couple, is violating Articles 14, 15, 19 and 21 of the Constitution of India.

Further, the Foreign Marriage Act, 1969 inasmuch as it discriminates against same-sex couples by denying legal recognition of their marriage is ultra vires Articles 14, 15, 19 and 21 of the Constitution, and ought to be read down to extend to same-sex couples, the plea said.

The petitioners submitted that the Supreme Court has in various decisions held that the right to marry a person of their choice is inherent in Article 21 of the Constitution of India.

The petitioners submitted that non-recognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfillment of LGBTQ couples.

The plea said the petitioners' marriage was officiated by Judge Srinivas, the Chief United States Circuit Judge for the US Court of Appeals of District of Columbia Circuit and is valid under US laws.

It said that before the pandemic, the petitioners regularly visited India annually during Diwali and Dussehra festivals but amidst the lockdowns during the COVID-19 pandemic, all foreigners including OCI cardholders were restricted from entering the country.

"When a relaxation was brought to the same in May, 2020, it was restricted to certain class of OCI cardholders such as those persons whose spouse was an Indian national, or those whose parents were Indian nationals. Non recognition of the petitioners' marriage by law in India continues to disentitle them to travel as a married couple to India and spend time with their families," the plea said.

According to the plea, the first petitioner, who is an Indian citizen, met the second petitioner, an Overseas Citizen of India, in Washington DC.

"They fell in love and over time, as their relationship grew, they met each other's parents and the families grew close. With the blessings of the parents, the Petitioners decided to take the next step in their journey--to get married to each other," the plea said.

"Following the court registration in 2017, the Petitioners, with the full support and blessings of their parents and family members, were married in Killeen, Texas in March 2019 in a traditional Jain wedding with all the ceremonies commonly performed at such events," it added.

The plea said that in November 2019 thereafter, the parents of the first petitioner held a reception for the newly-weds in their hometown in New Delhi, which was attended by around 100 close friends and family.