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Synopsis

The Delhi High Court on Monday transferred a batch of petitions to the Supreme Court that sought a declaration that the right to legal recognition of same-sex marriage or queer marriage is a fundamental right under Articles 14, 15, 19, and 21 irrespective of a person’s gender, sex or sexual orientation.

A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad transferred the matter to the Apex Court after it was told that Supreme Court has directed the transfer of all the matters about the issue to itself from all the high courts.

The bench was hearing a batch of petitions wherein it has been submitted that consensual sexual acts between persons of the same sex have already been decriminalized by the Supreme Court in Navtez Singh Johar's case.

The petitioners have also contended that the right to marry a person of one’s choice is an essential component of the right to autonomy and privacy within Article 21which has been recognized by a catena of judgments in India well as by foreign courts. Specifically, the right to legal recognition of same-sex or non-heterosexual marriages has also been upheld as a fundamental right in a number of judgments by foreign courts, such as the Supreme Court of the United States and the Constitutional Court of South Africa, they have asserted.

The petitioners have stated that even though Indian law is silent on the recognition of same-sex marriages, it is a settled principle that where a marriage has been solemnized in a foreign jurisdiction, the law to be applied to such marriage or matrimonial disputes is the law of that jurisdiction.

One of the pleas was filed by a couple, Joydeep Sengupta and Blaine Stephens who are a same-sex couple recognized as a legally married couple in the U.S., France, and Canada, the three countries where they have primarily lived and worked in the last twenty years. Joydeep Sengupta was born in India and was an Indian citizen at birth.

Sengupta and Stephens submitted that Section 7A(1)(d) of the Citizenship Act, 1955 entitles a spouse of foreign origin of an OCI Cardholder, whose marriage has been registered and subsisting for at least two years to apply for OCI status. As per a notification issued by the MHA, Foreigners Division, in the case of a marriage solemnized in a foreign country, the spouse of an OCI or Indian citizen applying for OCI may present the said marriage certificate for such a marriage, which must be apostilled or certified by the concerned Indian mission or post.

Additionally, in another petition, it has been contended that the right to marry a person of one’s choice is an essential component of the right to autonomy, and privacy within Article 21 has been recognized by a catena of judgments in India as well as by foreign courts. Specifically, the right to legal recognition of same-sex or non-heterosexual marriages has also been upheld as a fundamental right in several judgments by foreign courts, such as the Supreme Court of the United States and the Constitutional Court of South Africa.

"Even though Indian law is silent on the recognition of same-sex marriages, it is a settled principle that where a marriage has been solemnized in a foreign jurisdiction, the law to be applied to such marriage or matrimonial disputes is the law of that jurisdiction. Thus, a marriage like that of Petitioners being validly registered under US law must necessarily meet the requirements of the term ‘registered’ under Section 7A(1)(d) of the Citizenship Act," the plea added.

Case Title: Joydeep Sengupta & Ors vs Union of India and Ors and other connected matters