Delhi HC issues notice to Centre on plea seeking recognition of foreign spouse as OCI holder regardless of sexual orientation

LE Staff

New Delhi, July 7, 2021: The Delhi High Court has issued notice on a plea seeking recognition of a foreign spouse of an Indian citizen or Overseas Citizen of India as an OCI holder, regardless of their gender or sexual orientation.

Advocate Karuna Nundy in her petition also sought legal recognition of all same-sex, queer or non-heterosexual marriages under secular legislation such as the Foreign Marriage Act, 1969 and the Special Marriage Act, 1954.

A Division Bench of Chief Justice DN Patel and Justice Jyoti Singh issued notice and tagged the petition with similar cases calling for legal recognition of same-sex marriages in India, to be heard together on August 27, 2021.

The fresh plea also sought a declaration that the right to legal recognition of a same-sex marriage is a fundamental right under Articles 14, 15, 19 and 21 of the Constitution.

The present petition revolves around Joydeep Sengupta, an Indian citizen, and Blaine Stephens,a foreigner, who are a married same-sex couple residing in Paris, France. They had married each other in New York where their marriage was registered and recognized officially in 2012.

Since Stephens had no legal status in India except that of a temporary visitor, Sengupta had approached the Court to apply for OCI status of Stephens u/s 7A(1)(d) of the Citizenship Act as a spouse of Sengupta. 

The Central government had previously opposed the petitions on the ground that in spite of decriminalisation of homosexuality u/s 377 of the Indian Penal Code, there was no fundamental right to same-sex marriage till date.

It was also said that the fundamental right under Article 21 is subject to the procedure established by law and the same could not be expanded to include the fundamental right for a same-sex marriage.

During the previous hearing on the issue of same sex marriages before the Division Bench of Justice Rajiv Sahai Endlaw and Justice Amit Bansal, Solicitor General Tushar Mehta had said that right now the focus of the Government would be on absolutely urgent issues since the law officers were struggling with COVID issues. 

Responding to the same, Advocate Menaka Guruswamy argued that the matter of same sex marriages required urgent hearing as it had affected the daily lives of lakhs of people in the country, including lack of medical treatment and employment. 

However, SG Tushar Mehta refused to accept the contention of Guruswamy stating that neither marriage certificates are warranted for hospitals, nor deaths are occurring due to absence of marriage certificates.