Synopsis: The declaration that the Special Marriage Act and International Marriage Act should extend to all couples regardless of their gender identity and sexual orientation was requested in two separate pleas.
On Wednesday, the Delhi High Court asked the Centre to respond to two separate petitions by same-sex couples seeking to declare that regardless of their gender identity and sexual orientation, the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) could apply to all couples.
The bench of Justices Rajiv Sahai Endlaw and Asha Menon noted that they had no doubts about the sustainability of the petitions, but wanted answers from the Centre.
Appearing for the petitioners, Senior Advocate Menaka Guruswamy argued that multiple Supreme Court and Delhi High Court rulings had said that sexual orientation could not be grounds for discrimination.
The petitioners were challenging the constitutionality of the reading of the statutes, she stated. Ms. Guruswamy claimed that “who can not enter a marriage” was forbidden by SMA, including age restrictions.
The High Court listed the case for further hearing, on 9th January.
One of the petitions submitted by two women said that for eight years they had been a couple, lived together and shared the highs, the lows and the joys and sorrows of life. To register their marriage under the SMA, they sought guidance from Sub-Divisional Magistrate, Kalkaji.
The other plea was made by two men who were married in the United States, but their marriage registration was rejected under the FMA because it excluded marriages of the same sex.
The two women in their petition stated that when they tried to bring each other as nominees in insurance and financial plans, just as a married couple did, the absence of a legal structure around their relationship resulted in complexities for such plans.
“The partnership between the petitioners is not recognised when they need to apply for the verification of their passport by address, or to apply for a joint bank account or co-owned properties,” claimed their plea. They could not do easy things that were available for a married couple. They said that one of them had no evidence of residency for the longest period of time, even though the other owned the flat they lived in. When they had to apply for a passport to travel abroad, it became difficult.
In addition, if the other partner was unable to agree to a medical operation or make end-of-life decisions, the pair could not make medical decisions for each other, their plea contended.
“The petitioners want the protection of the rights offered by a marriage, so that they do not try to get authorities to accept their partnership for any right or right that married couples will automatically receive,” said their plea.