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The Delhi High Court on Wednesday issued notice to the Central government seeking its response on two petitions seeking legal recognition of same-sex marriage under the Special Marriage Act and the Foreign Marriage Act.
A division bench of Justice Rajiv Sahai Endlaw and Justice Asha Menon asked the Centre and others to file their response on the pleas and listed it for further hearing on January 8, 2021.
Meanwhile, counsel Raj Kumar Yadav, who was representing the Centre, told the Delhi High Court that this is a peculiar situation and such a situation has not occurred in the history of the Santana Dharma.
However, the bench reminded him to interpret the law in favour of the rights of the citizens of the ‘Sanatan Dharma’ country and said that the law is gender-neutral and do not see this petition as adversarial.
Advocate Kirtiman Singh, appearing for a respondent, said that this is not adversarial and shall not be considered that ways and it is a question of our development from where we stand today. Singh said that the respondents will file reply on the petitions.
Appearing for the petitioner, advocate Maneka Guruswamy said that legal recognition of the two same-sex couples was not allowed under the Special Marriage Act and the Foreign Marriage Act.
Justice Endlaw sought to know from the petitioners’ counsels whether the definition of marriage has been challenged and what would marriage be defined by customary laws.
The petitioner counsel responded that the Special Marriage Act and the Foreign Marriage Act is not based on customary law and it is statutory in law.
The bench said that according to the bench’s understanding, marriage till now has not been statutory and as per his knowledge, under the Indian law, marriage remains customary. It said that if any corrective measures are to be taken, it should be taken at this stage. Have you considered it from that point of view, the bench asked the petitioners.
Advocate Guruswamy told the court that she is challenging the constitutionality of the reading of this statute of the Special Marriage Act and added that the law prohibits who “cannot enter into a marriage”.
A same-sex couple, an Indian citizen and an Overseas Citizen of India, had also approached the court seeking legal recognition of their marriage under the Foreign Marriage Act, 1969, claiming they got married in Washington DC, the United States in 2017 but the Indian consulate in New York refused to register their marriage.
Meanwhile, another same-sex couple had last week moved the Delhi High Court seeking directions to allow the Special Marriage Act to apply to all couples regardless of their gender identity, after which the matter was referred to a division bench, which was dealing with a similar matter.
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