An Indian American couple has filed a precedent-setting petition with the Delhi High Court, urging the Indian government to recognize same-sex marriages. The case was scheduled to be heard by the court on May 24 morning. But as petitioners Parag Mehta and Vaibhav Jain watched the proceedings virtually from the U.S., attorneys for the Government of India asked for an extension of time to prepare their case. The motion was granted, representing the third time the case has been postponed for a hearing by the Court.
While seeking adjournment of petitions demanding recognition of same-sex marriages under existing law, the Centre told the Delhi High Court on Monday that there are other urgent matters that need consideration.Centre added that “nobody is dying because of the lack of marriage registration.” The hearing on the matter was adjourned to July 6.Solicitor general Tushar Mehta submitted before the court that the state is dealing with a pandemic at present and there are other urgent matters, which need consideration.“As a government, our focus in terms of urgency is on urgent, imminent issues,” submitted Mehta, adding that law officers are also dealing with pandemic-related cases.
“It was really upsetting to have it delayed again. This feels like a stalling tactic,” Jain — who served as the senior advisor for outreach and engagement at the AAPI Victory Fund — told the media, noting that his parents, who live in New Delhi, and Mehta’s parents, who live in Texas, were also watching, to support their sons.“We are not asking the Indian government for a new law, but to implement law that already exists,” Mehta, senior vice president at Mastercard, is reported to have said. “The Indian Constitution prohibits discrimination on the basis of sex. We are asking the Indian government to interpret these laws in an inclusive way.”
Section 377 of the Indian Penal Code, which prohibited homosexual activity, was overturned in 2018. But India has yet to recognize same-sex marriages, which are recognized in 29 countries, including the U.S.Mehta and Jain are seeking legal recognition of their marriage under India’s Foreign Marriage Act of 1969. The Foreign Marriage Act allows Indian citizens who have married abroad to have their marriage certified by a consular officer so that the spouse can legally participate in health directives, inheritances, and similar matters. “I need to prove I am Parag’s legal husband so I can make decisions on his behalf,” said Jain. The Act also allows a consular officer to “solemnize” — officiate — a marriage outside of India, if at least one of the spouses is an Indian citizen.
But the Act prohibits certifying “prohibited relationships,” though it does not define what types of relationships are prohibited. It furthermore states that the marriage cannot be in contravention of local laws. In March 2020, at the onset of the Covid-19 pandemic, Jain and Mehta went to the Indian Consulate in New York to have their marriage certified. They brought along friends as witnesses in case their marriage needed to be “solemnized” by a consular official. The couple filed their petition with the Delhi High Court after the Indian Consulate in New York declined to certify their marriage.