This post is part of a series on legal advocacy involving marriage equality in India. Read other posts in the series.
Who Are The Petitioners?
The petitioners are Vaibhav Jain (Twitter) and Parag Mehta (Twitter), a couple who have been together for 10 years and married for 5 years. Their marriage was conducted under American laws by Justice Sri Srinivasan, chief judge of the DC Circuit Court of Appeal and a shortlisted Supreme Court candidate in 2017. This was followed by a much-publicised traditional Jain wedding in Texas and a reception in Delhi, both in 2019. Both Jain and Mehta work in public policy: Jain is a dentist by training. Jain is an Indian citizen, and Mehta is an American citizen as well as an Overseas Citizen of India. In 2020, they applied to the Indian Consulate for registration of their foreign marriage under the Foreign Marriage Act, 1969. However, they were refused by the consulate worker. An email from the Consulate-General claimed that their action was not discriminatory, but that there were no rules governing the registration of their marriage.
Mehta and Jain have conducted various public interviews and events on same-sex marriage. Watch an interview with the petitioners here and an event here.
What Are They Asking For?
The petitioners are asking the Delhi High Court to declare that the Foreign Marriage Act, 1969 violates Articles 14, 15, 19, 21 as far as it excludes the solemnisation of same-sex marriages. They ask the Court to declare that all couples irrespective of sexual orientation and gender identity should be able to register their marriage under the Foreign Marriage Act, 1969. They also ask the Court to direct that the Petitioner received a certificate of marriage. This would allow couples, of which at least one is an Indian citizen to solemnise marriages in a foreign country, or to register marriages conducted under foreign laws with the Indian government.
What Do They Argue?
The petitioners have challenged the excursion of queer relationships from the Foreign Marriage Act, 1969 on the grounds that it violates the right to dignity and the right to marry, the right to equality, constitutional morality, freedom of expression, freedom of association and freedom of conscience. It also fails to keep up with changing social and international trends and denies various connected rights.
Right to dignity and the right to marry: Under Article 21, the Court has recognised the right to dignity as a part of liberty. The right to privacy includes autonomy and this includes the freedom of choice. Further, in cases such as Common Cause and Shafin Jahan, the Court has recognised the right to choice of a partner.
Violates the right to equality: There is no rational basis to differentiate between same-sex and opposite sex couples in the context of marriage, as both of them have the same hopes and aspirations and Navtej clarified that it is not only about the ability to procreate. There is no connection between this differentiation and the object of the Foreign Marriage Act, which is to regulate and recognise extra-territorial marriages. The distinction is so capricious and irrational that it is manifestly arbitrary (Article 14). Further, it is discriminatory on the basis of sex, sexual orientation and gender identity which are prohibited grounds of discrimination (in NALSA and Navtej under Article 15).
Constitutional Morality: In Navtej, the Court held that constitutional morality requires a pluralistic, inclusive society. Constitutional morality must trump social morality and the majoritarian view.
Violates the freedom of expression and association: The right to choose a partner, and express traditional family values, is a facet of the freedom of expression (Article 19(1)(a) and its intepretation in Asha Ranjan and Shafin Jahan). The exclusion of same-sex marriage would be an unreasonable restriction on this right. Morality, which is a ground to restrict the right must be understood as constitutional morality, not popular or social morality. Further, marriage is a foundational association between two people and its denial violates the freedom of association (Article 19(1)(c)).
Violates the freedom of conscience: In Puttaswamy, it was held that freedom of conscience is beyond religion and includes political belief. Autonomy in intimate associations is therefore a part of the freedom of conscience under Article 25.
March towards Equality in Marriage: Marriage is an important social institution. It is aspirational and the law has recognised an interest in preserving it by intervening to prevent breakdown of marriage. Law changes as per society’s needs (Revanasidappa) and the same is true of marriage from the abolition of sati and the introduction of the Hindu Code (1954-56) to reform through cases like Mary Roy, Gita Hariharan, Shayara Bano and Joseph Shine. There has been legislative recognition of live-in relationships, and the High Courts have also intervened to protect same-sex couples in various cases. In Arunkumar, the Court recognised a marriage between a trans man and a woman.
Denial of Rights Connected to Marriage: Marriage is a bundle of rights and these are denied as a consequence of the exclusion of same-sex couples. This includes: income tax deductions for various savings/insurance contributions for the spouse, gratuity payments, wages, nomination for EPF, half pension upon the spouse’s death and spousal privilege for evidence. There are various tax, residency benefits and property and healthcare rights. For the petitioners in particular, they are not registered as spouses on each other’s passport which made it difficult to come during the pandemic while heterosexual spouses could travel freely. This is also required when applying for a visa.
International Trends: The Foreign Marriage Act was enacted to streamline various provisions of private international law on marriage, so it should especially follow the international consensus. 30 democracies have now recognised same-sex partnerships, including the US, UK and in the Global South, South Africa, Taiwan, Columbia and to some extent in Nepal and China. Under the principle of updating construction, the Court must interpret law in the modern day. The Court can interpret the Foreign Marriage Act to allow marriage equality to save it from unconstitutionality.
What Is The Petition’s Journey In Court?
Filed: 8 October 2020. (W.P.(C) 7657/2020)
Notice issued: 14 October 2020.
Lawyers: Represented by Menaka Guruswamy and Arundhati Katju in Court. Team includes Govind Manoharan and Surabhi Dhar.
The Hearings. On 14 October 2020, Menaka Guruswamy brought up the petitions, explained the facts and the claims. The Court said there were no doubts on maintainability and issued notice to both the Union of India and the Government of NCT, Delhi. The lawyer for the Union, Rajeev Yadav said that they should look into Sanatan Dharma before deciding the matter. The Court informed the Union that they should not see the litigation as adversarial.
On 25 February 2021, after the Court disapproved of the Union’s delay in filing a reply previously, the Union of India filed its reply. On this day and on 24 May 2021, the Court adjourned the matter due to the pandemic. Solicitor General Tushar Mehta said there was no urgency, people are not dying. Menaka Guruswamy pointed out that decisions in hospital required marriage.
The petition is available here (Source: Bar & Bench).
Mihir Rajamane 
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