On the 8th of October, a petition has been filed before the HC of Delhi urging the Court to issue directions to allow the Special Marriage Act to apply to all couples regardless of their gender identity and sexual orientation.
The petition has been filed by a same-sex couple of eight years. One of the petitioners is a psychiatrist while the other one is a therapist. The two couples are part of a team that built North India’s leading clinic specializing in mental health and learning disabilities for children and young adults.
A single-judge bench of Justice Navin Chawla, however, referred the matter to a division bench on October 14, which is dealing with similar kind of matter and listed it for hearing next week.
The Couple urged to declare the Special Marriage Act,1954, as unconstitutional as it does not provide for solemnization of same-sex marriages, and even issue directions for declaring that the SMA,1954 1954 ought to apply to all couples regardless of their gender identity and sexual orientation.
The Petitioners asserted "Without marriage, the Petitioners are strangers in law. Articles 21 of the Constitution of India protects the right to marry a person of one’s choice: this right applies with full force to same-sex couples, just as it does to opposite-sex couples."
They argued that such denial of their right to marriage is violative of Article, 14, 15, 19, and 21 of the Constitution of India.
The petitioners relied on the case of Shakti Vahini vs. Union of India and Ors and submitted that the choice of an individual is an inextricable part of dignity and thus the choice of a partner lied within the exclusive domain of each individual.
Stating that constitutional morality trumps social morality, the Petitioners have added,
“The choice of a partner forms the essence of personal liberty and dignity under the Constitution... those who choose a same-sex partner in the sense that society may disapprove of inter-caste and interreligious marriages but the Courts have a constitutional mandate for enforcing constitutional rights.”
A petition(Vaibhav Jain & Anr vs UOI) has also been filed to declare that the Foreign Marriage Act, 1969 ought to be read to apply to same-sex marriages and is unconstitutional to the extent it does not do so.
This petition has also been filed by two gay men who got married in Washington D.C, United States. Their application to register their marriage with the Indian consultant at New York was refused on grounds of their sexual orientation.
In accordance with the argument brought up the challenge to the Special Marriage Act, the petitioners herein have contented that non-recognition of same-sex marriages was a wanton act of discrimination which struck at the root of dignity and self-fulfillment of LGBTQ couples.
The Couple earlier this year has even approached the Marriage Officer i.e SDM, South East Delhi, Kalkaji seeking solemnization of their marriage under the SMA,1954.
But, their right to marry was a person of their choice was denied to them on the grounds of their sexual orientation alone.
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