The Centre on Monday told the Delhi High Court that “marriage” is a term associated with heterosexual couples and “spouse” means husband and wife, as it contended that there is “some misconception” regarding the order in Navtej Singh Johar case which decriminalised homosexual sex but does not talk about marriage.
A division bench of Chief Justice D.N. Patel and Justice Jyoti Singh was hearing a batch of pleas seeking legal recognition of same sex marriage under the Foreign Marriage Act and the Special Marriage Act.
The court said it will hear the final arguments on November 30.
Appearing for the Centre, Solicitor General Tushar Mehta said that Navtej Singh Johar’s case does not talk about marriage, adding that marriage is permissible between a biological man and a biological woman.
Replying to a plea of a queer couple — an Overseas Citizen of India (OCI), and foreigner — seeking recognition of same sex marriages under the Foreign Marriage Act and Special Marriage Act, he said that it is a question of law and the issue here is whether marriage is permissible between homosexual couples.
The petition, filed by advocate Karuna Nundy with lawyers Ruchira Goel, Utsav Mukherjee, Ragini Nagpal, and Abhay Chitravanshi, sought a declaration that a spouse of foreign origin of an Indian citizen or OCI cardholder is entitled to apply for registration as an OCI under Section 7A(1)(d) of the Citizenship Act, 1955, regardless of the gender, sex or sexual orientation of the applicant spouse.
Nandy also sought legal recognition of all same sex, queer, or non-heterosexual marriages under secular legislations for marriage such as the Foreign Marriage Act, 1969 and the Special Marriage Act 1954.
According to the petitioners, they are a married same-sex couple resident in Paris. They met in New York in 2001 and have been in a loving relationship for nearly 20 years. They got married in New York on August 6, 2012, and are recognised as a legally married couple in the US, France, and Canada – the three countries where they have primarily lived and worked in the last twenty years and now they are preparing for their new role as parents, and they are expecting their first child in July 2021.
One among the couple is of Indian origin and now he sought to attain OCI status at the earliest in order to avail of this facility so that he can spend time in India – where his family lives – with his spouse and the baby they are expecting and indeed, to reach his husband and baby immediately in case of illness or other difficulties as needed during the pandemic.
The Centre had earlier told Delhi High Court that the acceptance of the institution of marriage between two individuals of the same gender is neither recognised nor accepted in any uncodified personal laws or any codified statutory laws.