The Delhi High Court on Monday transferred to the Supreme Court up to eight petitions by several same-sex couples seeking a declaration recognising their marriages under the Special Marriage Act, the Hindu Marriage Act, and the Foreign Marriage Act.
On January 6, the apex court had clubbed and transferred to itself all petitions in connection with grant of legal recognition to same-sex marriages pending before various high courts.
It had stated, “Since several batches of petitions are pending before Delhi, Kerala and Gujarat High Courts involving the same question, we are of the view that they should be transferred and decided by this Court. We direct that all writ petitions shall stand transferred to this Court.”
A division bench of Chief Justice Satish Chandra Sharma and Justice Subramonium Prasad, in its order on Monday said, “This court is of the opinion that in light of the order of the Supreme Court, all the matters are transferred to the Supreme Court. Office is directed to transfer the record immediately.”
The pleas are now listed before the top court for the hearing on March 13.
Advocate Arundhati Katju appeared for the petitioners in the matter.
Abhijit Iyer Mitra submitted one of the pleas that were transferred from the High Court, requesting the registration of marriages between LGBTQIA couples under the Hindu Marriage Act. He has claimed that the Act uses wording that is gender-neutral and does not prohibit same-sex marriages.
A different petition filed by Overseas Citizen of India (OCI) cardholder Joydeep Sengupta and his partner Russell Blaine Stephens prays for a declaration from the court that a spouse of foreign origin of an Indian citizen or OCI cardholder is entitled to apply for registration as an OCI under the Citizenship Act regardless of the gender, sex, or sexual orientation of the applicant spouse.
On November 25, last year, the Supreme Court had issued notice to the Centre and the Attorney General on two petitions filed by gay couples seeking recognition of same-sex marriage under the Special Marriage Act. Senior advocate Neeraj Kishan Kaul appeared for lead petitioners Supriyo Chakraborty and Abhay Dang.
Another petition filed by gay couple Parth Phiroze Mehrotra and Uday Raj said that non-recognition of same-sex marriages is violative of the right to quality under Article 14 and the right to life under Article 21 of the Constitution.
Parth Phiroze Mehrotra and Uday Raj, a gay couple, claimed in a separate petition that the Constitution’s Articles 14 and 21 (which protect the right to quality and life, respectively) are violated when same-sex marriages are not recognised.
On December 14, last year, the Supreme Court had issued notice on a petition filed by a same-sex couple seeking legal recognition of their marriage in India. The plea, filed through advocate Nupur Kumar, said: “The present Petition has been filed praying that this court may be pleased to issue a declaration to the effect that the persons belonging to the LGBTQIA+ Community have the same right to marriage as their heterosexual counterparts and a denial therefore is violative of the rights guaranteed under Articles 14, 19, and 21 of Part III of the Constitution of India, and upheld in various judgements of the Supreme Court including Navtej Singh Johar v. Union of India…and NALSA v. Union of India…”
The petitioners in this case, an Indian national and a United States of America (USA) citizen, got married and registered their marriage in the US in 2014 and now seek to register their marriage under the Foreign Marriage Act, 1969.