Two new petitions have been filed before the Delhi High Court by a lesbian and a gay couple, seeking recognition of their relationship under the Special Marriage Act and the Foreign Marriage Act respectively.
The first petition has been filed by Kavita Arora, 47, and Ankita Khanna, 36; and are being represented by advocates Menaka Guruswamy and Arundhati Katju. In their petition, the couple state that they have been together for eight years and living together as a couple, but are unable to marry as they both are women. They point out that many things that a heterosexual married couple take for granted, like opening a bank joint account, to buying a medical insurance, are extremely difficult for them; and they approached the marriage officer (the sub-divisional magistrate, South East Delhi, Kalkaji) to get married under Special Marriages Act 1954, but were denied marriage.
“The marriage officer would have solemnized the marriage of any similarly placed opposite-sex couple. Sexual orientation discrimination is constitutionally prohibited under Article 15, but the petitioners were refused the right to marry a person of their choice on grounds of their sexual orientation alone,” they said.
The other petition has been filed by a gay couple who got married in the USA, and is being represented by advocates Govind Manoharan and Surabhi Dhar. Vaibhav Jain, an Indian citizen, and Parag Vijay Mehta, an Overseas Citizen of India, had got married in the US in 2017, and are now seeking recognition of their marriage in India under the 1969 Foreign Marriage Act.
They said that on March 5, 2020 they had approached the Indian consulate at New York to register their marriage under the Foreign Marriage Act, 1969. However, the consulate refused the application for registration on grounds of their sexual orientation.
The petition mentions how the non-recognition of their marriage in India has caused them trouble. The petitioners stayed in the US, but would often visit India, especially during festivals like Diwali and Dusshera. However, with travel restriction introduced due to the pandemic, all foreigners including OCI holders were barred from entry.
“When a relaxation was brought to the same in May, 2020, it was restricted to certain class of OCI cardholders such as those persons whose spouse was an Indian national, or those whose parents were Indian nationals. Non recognition of the petitioners’ marriage by law in India continues to disentitle them to travel as a married couple to India and spend time with their families,” the petition states.
The petitions were heard by justice Navin Chawla, who then directed that the petitions be listed before the Chief Justice of Delhi High Court. The Chief Justice is already hearing a petition filed for recognition of same-sex marriages under the Hindu Marriage Act. The next hearing for the case is on October 14th.