A petition proclaiming validity of special marriage act on the grounds that it does not provide for solemnization of marriage between same-sex couples has been filed in Delhi High Court in October 2020. The petition seeks a declaration stating that the Special Marriage Act ought to apply irrespective of gender identity and sexual orientation. The petition has been filed by a couple who were denied to marriage under the Special Marriage Act 1954 on the ground of their sexual orientation. The Petitioners have contended that such a forswearing add up to infringement of Articles, 14, 15, 19 and 21 of the Constitution.
The Petitioners asserted that Article 21 and Article 19 of the Constitution of India under its wide ambit also protects the right to marry a person of one’s choice, and this right should apply to same-sex couples, just as it does to opposite sex couples as well as the petitioner contends that the exclusion of same sex marriage from the SMA violates Article 14 and 15 of the constitution as the Hon’ble supreme court has recognised that sexual orientation and gender identity are protected under the fundamental right of equality, while discrimination under Special Marriage Act is solely based on sexual orientation and gender identity which is a prohibited ground for discrimination under article 15 of the Constitution. In the Supreme court’s judgement in Navtej Singh Johar v. Union of India AIR 2018 SC 4321 the court opined that the spirit of personal liberty and dignity under the constitution lets a person have the choice of partners, those who choose same-sex partners might be disapproved by the society, even if the society disapproves of inter-caste and inter-religious marriage but the courts have a constitutional mandate for enforcing constitutional right. Referring to the Navtej Singh Johar supreme court’s judgement the petitioner contended that there no rational basis for the discrimination against the same-sex couples.
In the view of the above cases the Petitioners contend that there is no rational basis for discrimination against same-sex couple.
Besides challenge to the Special Marriage Act, an appeal has additionally been recorded in the matter Vaibhav Jain and Anr v. Union of India wherein a request has been favored by two gay men who got married in Washington D.C, United States. However, when they tried to enlist their marriage with the Indian department at New York, their application was declined on grounds of their sexual orientation. The appeal was filed to proclaim that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships and is unconstitutional to the extent that it does not recognise the same.
In accordance with the disputes brought up in the test to the Special Marriage Act, the Applicants thus have contended that non-acknowledgment of same-sex relationships was a wanton demonstration of segregation which struck at the foundation of nobility and self-satisfaction of LGBTQ couples. The appeal was taken up by a Single Judge Bench of Justice Navin Chawla, who coordinated that the petitions be put before a Division Bench on October 14.
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Petition link: Dr Kavita Arora and Anr v. UOI