[Same-sex marriage] Delhi High Court issues notice to Centre in plea to recognize foreign spouse as OCI holder regardless of sexual orientation

The Delhi High Court on Tuesday issued notice in a plea seeking recognition of a foreign spouse of an Indian citizen or Overseas Citizen of India (OCI) as an OCI holder, regardless of gender or sexual orientation (Joydeep Sengupta v. Union of India & Ors)..The petition filed through advocate Karuna Nundy 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..Notice was issued by a Bench of Chief Justice DN Patel and Justice Jyoti Singh and the petition was tagged with similar petitions calling for legal recognition of same-sex marriages in India. They will be heard together next on August 27..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 writ plea dealt with the case of two petitioners, Joydeep Sengupta and Blaine Stephens, who were a married same-sex couple residing in Paris, France.Back in 2012, they had married each other in New York where their marriage had been registered and recognized officially. While Sengupta was an Indian citizen, Stephens had no legal status in India except that of a temporary visitor. Therefore, the petitioners filed the present plea to apply for OCI status of Stephens under Section 7A(1)(d) of the Citizenship Act as a spouse of an Sengupta, who is an OCI cardholder..When the pleas seeking recognition of same-sex marriages were heard last, the Court had adjourned the matter for July 6, 2021. The Central government had sought an adjournment on the ground that according to a High Court circular issued in view of the ongoing COVID-19 pandemic, only "extremely urgent matters" are to be heard.Offering a personal explanation to the previous Division Bench of Justices Rajiv Sahai Endlaw and Amit Bansal, Solicitor General Tushar Mehta had said,"Law officers are struggling with COVID issues. Right now, as government, our focus is on real urgent issues.".Senior Advocate Menaka Guruswamy, appearing for one of the petitioners, had argued that the matter required urgent hearing as it affected the daily lives of lakhs of people in the country."We are left out in hospitals, medical treatment..." she said.To this, SG Tushar Mehta had responded,"You don't need marriage certificate for hospitals. Nobody is dying because they don't have marriage certificate." .The Central government had previously opposed the petitions on the ground that in spite of decriminalisation of homosexuality under Section 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 to include the fundamental right for a same-sex marriage..[Breaking] No fundamental right of same-sex marriage, legal recognition can't be given by court: Central government tells Delhi High Court.[Read Petition].Read full order here: