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Two Same Sex Couples File For The Right To Marriage That Straight People Take For Granted

Posted: October 15, 2020

What does Delhi High Court’s notice about same-sex couples registering their marriages legally mean for the LGBTQIA+ community?

Two same-sex couples have filed different pleas to register their marriages under the Foreign Marriage Act and the Special Marriage Act. Delhi High Court now seeks the central government’s response to pleas by the two couples. Though India struck down Article 377 in 2018, same-sex marriages still cannot be registered under Indian law.

The Special Marriage Act of 1954 was enacted to facilitate ‘special’ marriages between Indians or Indian nationals irrespective of their religion. And The Foreign Marriage Act of 1969 authorises marriages between Indians nationals and foreign citizens.

What is the plea about?

The first petition is filed by two women, who said they have been living together for the last eight years in a stable relationship. It seeks to register their marriage under the Special Marriages Act.

The second plea, by two men who were married in the U.S, seeks to register the marriage in India under the Foreign Marriage Act. While the men were legally married in the US, they were denied registration of their marriage in India under the Foreign Marriage Act

Same-sex marriages are still not legal in India, despite the annulment of Article 377. While there are mentions of age of ‘bridegroom’ and ‘bride,’ Indian laws concerning marriages do not mention marriage between same-sex couples. The two pleas have challenged this very notion, seeking to register their marriages under these laws just like other heterosexual couples.

Why don’t Indian laws include same sex marriages?

After the couples filed these petitions, the Delhi High Court has now issued a notice to the Delhi and Centre Governments for a response. And the hearing regarding the same is to be held on January 8th. The Bench included Justice Rajiv Sahai Endlaw and Justice Asha Menon.

Though the Bench has no doubts about maintainability of the petitions, it did add that the concept of marriage, in law, is informed by customary law. In essence, customary laws include laws and practices and customs that emanate from communities.

The meaning of ‘marriage’ stems from its understanding in the community and that is in a heterosexual sense. Customary law makes no mention of same-sex marriages. This is why same-sex marriages are not included in the bracket of ‘marriage’ under Foreign Marriage Act and Special Marriage Act.

What could this plea mean for same-sex couples?

Both submitted pleas highlight struggles around regular, even essential aspects of their life as couples. They face the lack of legal structure while stating each other as nominees for a bank account or financial plans.

Adding on, homosexual relationships are not recognised during address verifications for passports or jointly owned assets. The aspect of residence is also complicated. And the couple is also not authorised to take medical decisions for each other. Basically, homosexual couples have limited access to the privileges, rights and benefits that come with a legally registered marriage.

The legalisation of same-sex marriages would mean more than just an approval stamp from the government. Same-sex couples would have access to the privileges that are often taken for granted by heterosexual couples.

In the bigger picture, the taboo surrounding homosexuality will undergo a small repair if not a complete one. As a country, we are far from normalising same-sex couples and their lives.

Marriage in Indian eyes, as under customary law, is the legal stamp to authorise pro-creation between a man and woman. Same-sex marriages face neglect for not fitting into this very framework. Even pleas for legalisation could truly be the first step towards good and satisfying lives for same-sex couples in India.

Picture credits: Photo by Sharon McCutcheon from Pexels

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A student of International Relations at Shiv Nadar University. Enjoys old bands and acrylics.

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