India’s highest court to hear landmark case that hopes to finally usher in marriage equality
As the movement for marriage equality grows in India, two LGBT+ couples have taken their plea to the country’s highest court.
The first case was brought by two women, who say officials denied their right to wed under the Special Marriage Act (SMA), which allows Indians to marry whatever their caste or religion.
Their petition stated they had been a couple for eight years, lived together and “shared the highs, the lows and the joys and sorrows of life”, The Hindu reported.
The second case concerns two men who tried to register their wedding in the US under India’s Foreign Marriage Act (FMA). Both couples say the law forbidding their marriages is unconstitutional, and that the FMA and SMA should apply to all couples, regardless of their gender identity and sexual orientation.
“[The] non recognition of same-sex marriages is a wanton act of discrimination that strikes at the root of dignity and self-fulfilment of lesbian, gay, bisexual, transgender and queer couples,” they said.
“The petitioners wish to have the protection of the bundle of rights that a marriage provides, so that they are not trying to get authorities to acknowledge their relationship for every entitlement or right that married couples would get automatically.”
Senior advocate Menaka Guruswamy, appearing for the couples, argued that multiple judgments of the Supreme Court and the Delhi High Court had said that sexual orientation could not be grounds for discrimination in India.
Yet India’s solicitor general Tushar Mehta claimed in September that same-sex marriage simply “cannot be done” unless the court “does violence to various laws.”
However, he added that he had not yet received instructions from the government on the issue, and prime minister Narendra Modi’s administration subsequently declined to take a position and left the decision to the country’s top court.
Encouragingly, the court’s chief justice DN Patel and justice Prateek Jalan have agreed to listen to the case with an open mind. Although they stated that they hadn’t made a legal decision yet, they noted that “changes are happening across the world”.