High Court refers to 2-judge bench same sex couple's plea for marriage solemnisation

New Delhi: The Delhi High Court on Thursday referred to a division bench a petition seeking enforcement of the fundamental right of choice of partner, thereby declaring the inclusion of solemnisation of same sex marriage under the Special Marriage Act 1954.

The petition filed by a same sex couple was listed before a single judge bench of the high court presided by Justice Navin Chawla who has directed that the matter be listed before a division bench of the court.

The plea states that the petitioners have been a couple for eight years. They live together and share finances. They also look after the petitioner no. 1's father, who is over 88 years old.

The petitioners also said that they go on vacations with their parents. When they are ill, they care for each other. Petitioner no. 1 is a psychiatrist and petitioner no. 2 is a therapist, and they are part of the team that built North India's leading clinic specializing in mental health and learning disabilities for children and young adults.

"They share the highs, the lows, the joys and sorrows of life; they go through the wear and tear of living together; they have the deep, unbreakable bond of two people who have come together in love," the plea states.

It was further mentioned that the couple on September 30 approached the Marriage Officer seeking solemnization of their marriage under the Special Marriage Act, 1954.

"The Marriage Officer would have solemnised the marriage of any similarly placed opposite-sex couple. Sexual orientation discrimination is constitutionally prohibited under Article 15, but the petitioners were refused the right to marry a person of their choice on grounds of their sexual orientation alone," the plea narrated.

The plea filed through advocates Arundhati Katju, Govind Manoharan, Surabhi Dhar and argued by senior advocate Menaka Guruswamy stated that like any other couple, the petitioners want their relationship to be blessed and sanctified by society and by law. Marriage offers both legal protection and social recognition of the commitment, support and security a couple offer each other, which are even more important in these times of the Covid-19 pandemic.

"Marriage is not just a relationship between two individuals -- it brings two families together. But it is also a bundle of rights. Without marriage, the petitioners are strangers in law. Article 21 of the Constitution of India protects the right to marry a person of one's choice. This right applies with full force to same-sex couples, just as it does to opposite-sex couples," the plea stated.

The petitioners have sought the court's direction to declare that the Special Marriage Act, 1954 ought to apply to all couples regardless of their gender identity and sexual orientation.

It has also sought the court's direction to the Marriage Officer to register the marriage of the petitioner couple under the Special Marriage Act, 1954.

The plea has also sought the court's order declaring that the Special Marriage Act, 1954 is unconstitutional insofar as it does not provide for solemnization of marriage between a same sex couple.