Laws are gender-neutral, try to interpret them for the rights of citizens: Delhi HC issues notice in pleas to recognise same-sex marriage

"We would be like to be recognised as full human beings", argued Senior Advocate Menaka Guruswamy today on behalf of two same-sex couples who have petitioned the Delhi High Court for the legal recognition of same-sex marriage. .The petitioners have filed writ petitions urging that the Special Marriage Act and the Foreign Marriage Act be interpreted to also apply to the marriages of same-sex couples. .The Delhi High Court Bench of Justices RS Endlaw and Asha Menon today issued notice in the matter and fixed the cases for further hearing on January 8, 2021. ."This is a peculiar situation", Advocate Raj Kumar Yadav submitted during today's hearing, appearing for the Union of India. He added, "In Sanatana Dharma, in the last 5,000 years, this kind of situation we have not faced.".The remark drew a sharp response from Justice Menon, who 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."Justice Asha Menon.The Central government's standing counsel, Advocate Kirtiman Singh agreed that the matter cannot be treated as adversarial. "This matter merits notice, we will file a reply", he said. .Petitioners have been rendered right-less, argues Guruswamy.The matter involves two petitions, filed by two same-sex couples. .Plea filed before Delhi HC to declare that Special Marriage Act applies to same-sex couples .One couple has assailed the prevailing interpretation of the Special Marriages Act. Through Senior Advocate Guruswamy, they told the Court today that when they approached the concerned Sub-Divisional Magistrate to apply for marriage, "they were refused even entry into the building."."Only their lawyer was told that since they were a same-sex couple, they could not marry", Guruswamy told the Court..Another same-sex couple, two men who had been married by the highest ranking Indian Judge in New York, were denied the registration of their marriage under the Foreign Marriages Act by the Indian Consulate in New York. .Taking the Court through correspondence between the couple and the Consulate officials, Guruswamy told the Court that the Consulate had openly admitted to having denied the marriage registration on the ground of sexual orientation alone. The couple was told that the prevailing guidelines do not permit the registration of their marriage. .Guruswamy asserted that the authorities' actions clearly indicated that they were not aware of the Supreme Court's pronouncements in Puttuswamy's case and the Navtej Singh Johar case, whereby the Apex Court had ruled against discrimination on the grounds of sexual orientation. The right to choose a partner of one's choice was also underscored in these rulings..By refusing to allow the petitioners to marry or register their marriage, their inherent rights to dignity and expectation of Constitutional morality had been violated, she argued..Responding to Justice Menon's query on whether any appeal was moved before the government challenging such refusal to recognise the marriages, Guruswamy pointed out that the petitioners were not even allowed such an opportunity."That is what it means to be right-less", Guruswamy added..Not a matter of customary or religious rights: Petitioners.It was also asserted that the issue is not a matter of customary rights, but rather of civil rights that were sought to be recognised. .Justice 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.".Guruswamy 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.".She went on to highlight that the Special Marriages Act only deals with "who cannot enter into a marriage" i.e. insane persons, minors, degrees of relations and where there is no consent. She argued, "We are challenging the Constitutionality of the reading of this statute... My submission is simply this. The Special Marriage Act prohibits who "cannot enter into a marriage"... This is what the statute conceives. It is not here to define "marriage." It is only here to define "who cannot marry.".Simply want to be recognised as full citizens: Petitioners.Guruswamy also drew the Court's attention to how special rights are given to married couples in terms of buying a house, availing life insurance policies, taking care of the families of one's partner, getting loans, and having a bank account. .Added to this, she relied on the Supreme Court's rulings in the Puttaswamy and the Navtej Singh Johar cases to assert that Article 21 has been interpreted to encompass the rights of same-sex couples, including their right to marry. .In the latter case, the Supreme Court had also observed that the purpose of marriage goes beyond mere procreation, she pointed out. .In this backdrop, she argued that the petitioners "simply want to be recognised as full citizens.".Notice in the matter has been accepted by both the Union of India and the Government of Delhi today. The Court directed them to file affidavits within four weeks, and the rejoinders thereto may be filed within four weeks thereafter. The matter has been listed for hearing on January 8. .Advocate Arundhati Katju was also present today on behalf of the petitioners. Advocate Sangita Rai was present on behalf of one of the respondent-authorities. .When the Court was told that there was another plea seeking to challenge the interpretation of the Hindu Marriage Act on grounds that it should also recognise same-sex marriages, Guruswamy submitted that it was entirely different from the present pleas. .She explained that while the earlier plea was filed in public interest by parties not directly affected, the instant case involves petitioners who are directly aggrieved. .Notably, while responding to the earlier plea, Solicitor General Tushar Mehta had told the Delhi High Court, “Our legal system and values do not recognise marriage, which is sacramental, between same-sex couples.”.Our legal system, values do not recognise same-sex marriage: SG Tushar Mehta tells Delhi HC