Marriage is permissible only between a biological man and a biological woman: Solicitor General Tushar Mehta

A two-judge bench of Justice D. N. Patel and Justice Jyoti Singh was hearing a couple of petitions regarding the legal recognition of same-sex marriages and marriages within the LGBTQIAP+ community under existing laws like the Hindu Marriage Act, 1955, the Special Marriages Act, 1954 and the Foreign Marriage Act, 1969. Abhijit Iyer Mitra submitted that the language used within the Hindu Marriage Act, 1955 is gender-neutral and hence, same-sex marriages are not barred under the act for LGBTQIAP+ individuals. Dr. Arora, another petitioner, held that the right to choose one’s partner for marriage is enshrined under Article 21 of the Indian Constitution, wherein the same right can be extended to same-sex marriages according to Dr. Arora. Senior Advocate Saurabh Kirpal held that the judgement in the Navtej Singh Johar case must be interpreted to include same-sex marriages since the judgement inevitably directs towards the legalisation of same-sex marriages; however, Solicitor General Tushar Mehta (SG) held that the judgement of the said case was limited to the decriminalization of same-sex relationships and not to the question of same-sex marriages, wherein the SG submitted that the personal laws of India limit the recognition of marriages between a biological man and a biological woman. Advocate Karuna Nundy appearing for another petitioner (OCI cardholder Joydeep Sengupta and his partner Russell Blaine Stephens) held that provisions of the Foreign Marriage Act, 1969 neither place a requirement for the spouse and bride to be of different genders nor require a marriage between a biological man and a biological woman, wherein she held that a couple getting married in a nation where same-sex marriage is legal should be allowed to register their marriage in India. The advocate contended that Section 7A of the Citizenship Act, 1955 talks of a “person” as a spouse and does not differentiate between heterosexual and homosexual couples, wherein Section 7A, Sub-Section 1, Clause D of the act states that a spouse of either a citizen of India or an overseas citizen of India (OCI Cardholder) of foreign origin is eligible to apply as a spouse for the said OCI card if and only if the marriage is registered and subsisted for two years in the foreign country; hence, the said provision does not mention the gender of the spouse according to Advocate Karuna Nundy.

Solicitor General Tushar Mehta opined that the word spouse in the Citizenship Act, 1955 refers to a husband and a wife because marriage in the act refers to heterosexual marriage and not homosexual marriage.

The bench listed the aforementioned petitions for further discussion on November 30, 2021.

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