New Delhi: The Delhi High Court on Tuesday sought response from the Centre and the Consulate General of India, New York, on a petition to allow a foreign-origin spouse of an Overseas Citizen of India cardholder to apply for OCI registration regardless of gender or sexual orientation.
The petition seeks a declaration that the right to legal recognition of same-sex marriage is a fundamental right under Articles 14, 15, 19 and 21 of the Constitution irrespective of a person's gender, sex or sexual orientation. All same-sex or queer marriages be legally recognized in India under the applicable statutes, rules and policies that are in force, it said. A bench of Chief Justice D N Patel and Justice Jyoti Singh issued notice on the petition and listed it for further hearing on August 27 along with other pleas seeking recognition of same-sex marriage under Hindu, special and foreign marriage acts.
The petitioners are a married same-sex couple -- Joydeep Sengupta, an OCI, and Russell Blaine Stephens, a US citizen -- and Mario Dpenha, an Indian citizen and a queer rights academic and activist pursuing a PhD at Rutgers University, USA. In their petition filed through advocates Karuna Nundy, Ruchira Goel, Utsav Mukherjee, Ragini Nagpal and Abhay Chitravanshi, the three have informed the Court that Sengupta and Stephens been in a loving relationship for nearly 20 years and even got married in New York on August 6, 2012, which is recognised in the US, France, and Canada.
The couple is now preparing for their new role as parents as they are expecting their first child in July 2021, it added. Since Stepens wished to apply for OCI status under Section 7A(1)(d) of the Citizenship Act in order to be entitled to multiple entry lifelong visa for visiting India, the couple approached Dpenha to file RTI applications to ascertain the legal position on Stephen's eligibility. The three decided to move the high court after “the Ministries kept transferring the RTIs back and forth” and no effective response was received. “The petition seeks that the Foreign Marriage Act and Special Marriage Act be read in accordance with the Constitution of India.”, Nundy told the Court.
Read: HC shocked over govt raising false claims with impunity, seeks rules to hold officers accountable
The petition states that “a marriage like that of Petitioners Nos.1 and 2 (the couple), being validly registered under US law, must necessarily meet the requirements of the term 'registered' under Section 7A(1)(d) of the Citizenship Act”. It is asserted that “conceptions of family and kinship under the law should recognise communities of people who may vary in their personal identities but live together in a shared experience of queerness and love to not participate in the compulsory heteronormative family”.
In the first petition on recognition of same-sex marriage, Abhijit Iyer Mitra and three others have contended that marriages between same-sex couples are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise same-sex marriages under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA). The two other pleas are --- one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent it does not provide for same-sex marriages and the other filed by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).