The Delhi High Court issued notice in a couple of writ petitions seeking marriage equality for same-sex couples in India.
The case was filed by Dr Kavita Arora, who has been living with her partner Ankita Khanna for 8 years.
The petition seeks a direction to be issued to the Marriage Officer, South East Delhi, to solemnize their same sex marriage under the Special Marriage Act.
Contentions by the Petitioner
It is the case of the Petitioners that the fundamental right to choose one’s own partner for same sex marriage under Article 21 of the Constitution . Any contrary reading, it is argued, would violate the equality before law and would go against the spirit of the Supreme Court’s judgement in Navtej Singh Johar v. Union of India.
The petition in the case of solemnizing same sex marriage states that:
‘The law bestows a myriad legal rights and protections in matters of succession, taxation, insurance, maintenance, pension, health and marital privileges that are unavailable to unmarried couples. The Petitioners are deprived of all the legal rights and social benefits that flow from the institution of marriage as the SMA excludes same-sex couples.’
‘The right to choose a marital partner is a positive obligation of the State to be fulfilled through its existing marriage laws. Excluding same sex marriage from a legislation governing civil marriage outside personal law renders the SMA violative of constitutional guarantees of dignity, liberty, and equality‘, the petition claims.
It is submitted by the Petitioners that what they seek is not the right to be left alone, but the right to be acknowledged as equals and to be embraced with dignity by the law for same sex marriage.
It is further argued that the Navtej Johar judgment has held that sexual orientation places a positive and negative obligation on the State, which includes non-discrimination under Article 15 of the Constitution.