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Synopsis

The Delhi High Court on Tuesday deferred hearing in a batch of petitions pertaining to the recognition of same-sex marriage in India noting that similar petitions are pending before the Supreme Court.

A bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad in view of the above deferred the hearing to April 24, 2023.

The bench was hearing a batch of petitions seeking 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.

Today, the bench was informed that similar petitions have been filed in the Supreme Court and the petitioners before the court will also be moving a transfer petition.

In support of their prayer, it is the argument of the petitioners 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 as an essential component of the right to autonomy and privacy within Article 21 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 argued 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. 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, they have contended.

The Centre has already filed its reply in the matter that stated: “Living together as partners and having sexual relationship by same sex individuals is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two".

Case Title: Abhijit Iyer Mitra Vs. Union of India