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The Delhi High Court today issued notice on a plea seeking a declaration that the right to legal recognition of a 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.
The division bench comprising Chief Justice DN Patel and Justice Jyoti Singh has tagged the plea with similar other petitions and listed the matter on August 27 for next hearing
The petition has been filed in pursuit of getting Overseas Citizen of India (“OCI”) card to same sex spouse of an Indian citizen to visit India amid the restrictions imposed due the Covid-19 pandemic.
Petitioners Joydeep Sengupta and Blaine Stephens 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. Mr. Sengupta is a Canadian Citizen now and since 2011 he has been an Overseas Citizen of India (“OCI”). His husband Blaine Stephens is a U.S. citizen and currently a long term resident of France. The couple is expecting their first child in July, 2021.
The petitioners' contention is that as one set of grandparents to the child resides in India and due to this ongoing pandemic both the petitioners will be needing to visit India frequently.
This prompted the Petitioner to ascertain the legal position on the eligibility of Mr. Stephens to apply for OCI status. Since they aren’t citizens of India, they approached Mario Dpenha (Petitioner no. 3) , an Indian citizen, a queer rights academic to file RTIs on the issue.
The petitioners have 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.
Blaine Stephens being the spouse of an OCI cardholder, i.e, Joydeep Sengupta is keen to apply for OCI status through this procedure.
The Petitioners have 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 contented that the right to marry a person of one’s choice as an essential component of the right to autonomy, 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 a number of judgments by foreign courts, such as the Supreme Court of the United States and the Constitutional Court of South Africa.
It is submitted by the Petitioners 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.
The petition has been filed through Advocate Karuna Nundy.
Case Title: Mr. Joydeep Sengupta & Ors vs Union of India and Ors
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