Delhi High Court notice to Centre on petitions seeking recognition of lesbian, transgender marriage

The Delhi High Court on Tuesday issued notices to the Central government on two petitions seeking recognition of the marriage of a transgender woman who entered into a civil union in South Africa and a lesbian couple that tied the knot in Varanasi (Zainab Patel v UOI and Ors & Nibedita Dutta v UOI and Ors)..A Bench of Chief Justice DN Patel and Justice Jyoti Singh heard the matters and directed the Centre to file its response by February 3. The Court has tagged the two matters with several other petitions dealing with the issue..The first petition has been filed by a woman named Zainab Patel who is posted as Director (Inclusion and Diversity) at KPMG. Patel has said that when she informed her parents about her gender identity, she was thrown out of the house and forced to beg on the streets. However, she triumphed over these struggles and now leads the LGBTQIA+ subcommittee of the Diversity and Inclusion Committee at FICCI, and is a member of the National Council for Transgender Persons.The petition argued that the Supreme Court in NALSA v UOI (2014) has recognised that transgender persons have the right to be recognised in the gender of their choice and that gender has to be determined based on a psychological test not a biological one..It added that in Navtej Singh Johar v UOI (2018), a Constitution Bench of the apex court held that LGBT persons are entitled to all the rights and protections that the Constitution guarantees on an equal footing with non-LGBT persons.“In Arunkumar and Anr. v. Inspector General of Registration and Others, AIR 2019 Mad 265, the Madras High Court recognized a marriage between a man and a transwoman under the Hindu Marriage Act. The Union's own Transgender Persons (Protection of Rights) Act, 2019 recognizes transgender persons in the gender of their choice, prohibits discrimination in matters of education and employment, and establishes the National Council for Transgender Persons, of which the Petitioner is a member,” read the petition..The petition questioned the Centre’s stand that marriage is only between a ‘biological man’ and ‘biological woman’.“Imagine, then, petitioner's consternation to learn that, after all her struggles and triumphs, and those of crores of other transgender persons like her, the Union now argues before this Hon 'ble Court that marriage should be restricted to "biological" men and women, and that doing so will protect the Indian family unit,” it read.It added, “The Union seeks to classify men and women into two categories - "biological" and otherwise. Yet for the purposes of marriage, there is no intelligible differentia between the Petitioner and any other woman. The ability to procreate is not a condition of or for marriage under any law. Infertile couples can marry, elderly couples can marry, and couples who have decided not to have children can marry.”.The petition filed by the lesbian couple argued that their marriage took place in the holy city of Varanasi and like thousands of other couples, the exchanged varamalas, circambulated the sacred fire seven times and applied sindoor on each other’s foreheads and, therefore, they are married in the eyes of God and are now calling upon the Court to declare that man’s temporal laws recognise their marriage.The petition added that not only the Supreme Court but several High Courts across the country have uniformly protected inter-caste and inter-religious couples who came knocking on their doors, as the Constitution identifies one’s right to marry a person of their choice. The petiotioners thus sought a declaration that this right is extended to LGBT couples as much as it does to all other citizens.“Just as the Constitution is a living document, so too is custom dynamic and free from stasis. The HMA requires no set custom for there to be a valid marriage between two Hindus, Buddhists, Sikhs or Jains. Where custom fails to meet constitutional standards, it is the Constitution which shall prevail: constitutional morality trumps social morality every time. Article 25 protects the Petitioners' freedom of religion, including their right to marry under their personal law,” the petition argued.The Court on Tuesday also issued notice on an application seeking live-streaming of proceedings in the cases calling for recognition of same-sex marriage in the country.