central government, supreme court, bjp, Navtej Johar, same-sex marriages,

The Centre told the Delhi High Court that though the Supreme Court’s decision in the Navtej Singh Johar case decriminalized sexual relationship among consenting same sex adults, it does not accord legal recognition to marriage between non-heterosexual persons.

The Division Bench led by Chief Justice D.N. Patel and Justice Jyoti Singh is seized of a batch of petitions seeking legal recognition of marriage between same sex, queer or non-heterosexual persons under the Special Marriage Act, 1954 and other laws.

Solicitor General Tushar Mehta, appearing for the Centre, contended the Navtej Singh Johar case pertains merely to decriminalizing consensual relationship between consenting same sex adults while not touching upon the aspect of legality of marriage solemnized between such couple.

In addition, he submitted that law only recognizes marriage between a biological man and a biological woman. “Personal laws are settled. Marriage which is contemplated is between a biological man and a biological woman,” he stated.

The Bench posted the matter for final hearing on November 30, 2021.

Among the batch of pleas, a petition filed by Overseas Citizen of India, Joydeep Sengupta, and his American partner Blaine Stephens, a same sex married couple residing abroad, also seeks declaration of applicability of Section 7A(1)(d) of the Citizenship Act, 1955, which entitles a spouse of foreign origin of an OCI cardholder to apply for OCI status in the country, to non-heterosexual, same-sex or queer spouses.

In addition, the plea prays for declaration of the Foreign Marriage Act, 1969 as also the the Special Marriage Act, 1954 as violative of Articles 14, and 21 of the Constitution to the extent that these enactments excludes same-sex marriages or queer marriages from its purview.

Relying on the decision of the Top Court in “Navtej Singh Johar vs. Union of India”, (2018) 10 SCC 1, wherein the Court has decriminalized the consensual sexual acts between persons of same sex, the plea states:  “Because one’s right to marry an individual of their choice is a freedom accorded to every person under Article 19, and read with Article 21, their right to privacy allows them the inviolable right to determine how this freedom is exercised.”

Another petition filed by a group of non-heterosexual persons seeks declaration that a marriage solemnized between “any two persons” regardless of any gender or sexuality be declared legal under the Special Marriage Act, 1954. Alleging that the Indian Constitution invalidates any gender and sexuality-based preconditions for marriages solemnized under SMA, the plea by one Udit Sood and others states: “The object of the Special Marriage Act, 1954, is to expansively provide access to the fundamental right to marry, notwithstanding societal prejudices. Conditioning marriage on compliance with outdated and unscientific heteronormative values and binary notions of gender, excludes LGBTQ+ individuals.”

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