HC notice to govts on same-sex marriages

The Delhi high court on Wednesday sought responses from the Centre and the Delhi government on pleas by two same-sex couples seeking legal recognition of their marriages under two different civil laws, the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA), and observed that “laws are gender-neutral” and are for the rights of “every citizen”.

A bench of justices Rajiv Sahai Endlaw and Asha Menon said marriage is not defined in both acts, but the concept emanates and is interpreted under customary laws that do not recognise samesex marriages.

The bench stated that inhibitions could be shed after Rajkumar Yadav, one of the counsels for the Centre, submitted that the pleas presented a peculiar circumstance and that such a situation has not been faced in 5,000 years of ‘ Sanatan Dharma’.

“We may shed our inhibition. The laws are gender-neutral. You please try to interpret the law for the citizens of Sanatan Dharma in the country. This is not an adversarial litigation. This is for the right of every citizen of the country,” justice Menon said.

Central government standing counsel Kirtiman Singh said that the issue would require a detailed reply.

During the proceedings, the court said SMA was enacted as there were no customs for inter- faith and inter- caste marriages, and stated that once same-sex marriage is recognised under the customary laws, other statutes like SMA and FMA would follow suit. It stated that if the petitioners wished to make any change in their pleas to challenge the definition of marriage, now was the time to do so. “Please understand that till the concept of marriage is not challenged, it would not be able to move forward in the matter because marriage is not defined. There is otherwise no question on the maintainability of the pleas but in both the Special Marriage Act and Foreign Marriage Act, the term marriage has not been defined,” said the court.

However, senior advocate Menaka Guruswamy who argued for the petitioners, said the plea was not to challenge customary or religious laws, but discrimination by civil laws.