Marriage permissible only between biological man & woman: Centre to Delhi HC

Solicitor General Tushar Mehta said that there is a misconception regarding the Navtej Singh Johar v. Union of India case saying that it merely decriminalises a consensual homosexual act and does not talk about marriage.

Supreme Court
Supreme Court

The Centre in a submission to the Delhi High Court on October 25, 2021 stated that marriage is only permissible between "a biological man and a biological woman" under the current law.

The Solicitor General Tushar Mehta in his submission argued that ‘spouse’ means either husband or wife and ‘marriage’ is a term associated with heterosexual couples.

Mehta further said that there is a misconception regarding the landmark Navtej Singh Johar v. Union of India case, saying that it merely decriminalises a consensual homosexual act and does not talk about marriage.

A Delhi HC bench comprising Chief Justice D N Patel and Justice Jyoti Singh was hearing the arguments on a batch of three petitions. The bench has listed the matter for final hearing on November 30, 2021. 

What are the three petitions?

In the first petition, Abhijit Iyer Mitra and three others have sought a declaration to recognise same-sex marriage under the Hindu Marriage Act and the Special Marriage Act (SMA). 

The second petition was filed by two women seeking to get married under the Special Marriage Act (SMA). 

The third petition was filed by OCI cardholder Joydeep Sengupta, his partner, a US citizen named Russell Blaine Stephens and Mario Dpenha, an Indian queer rights activist pursuing a PhD at Rutgers University, USA. Their plea seeks that a foreign-origin spouse of an OCI cardholder should be allowed to apply for OCI registration regardless of gender or sexual orientation. 

Key details about the hearing

The lawyer of Joydeep Sengupta and Russell Blaine Stephens, Karuna Nandy said that the two got married in New York and submitted that the Section 7A(1)(d) of the Citizenship Act, 1955 provides that a person married to an OCI, whose marriage is registered and subsisting for two years, should be declared eligible to apply for an OCI card as a spouse. She contended saying that the Citizenship Act is silent on the gender and sexuality of the spouse. 

However, Solicitor General Tushar Mehta appearing on behalf of the Central Government contended that 'spouse' means husband and wife and 'marriage' is a term associated with heterosexual couples. 

He said that there is no need to file a specific reply with respect to the Citizenship Act. He clarified that marriage is permissible between a biological man and a biological woman.

Navtej Singh Johar v. Union of India case

In a landmark ruling on September 6, 2018, a five-judge constitutional bench of the Supreme Court had struck down provisions under Section 377 that criminalised homosexuality.

The historic judgement was passed by a constitutional bench comprising the then Chief Justice Dipak Misra and Justices R F Nariman, D Y Chandrachud, Indu Malhotra and A M Khanwilkar. The bench had ruled that Section 377, to the extent it criminalises sexual acts between consenting adults, whether homosexual or heterosexual, is unconstitutional.

The apex court gave its ruling on a batch of petitions that included lead petitions filed by Bharatnatyam dancer Navtej Singh Johar, Naz foundation, business executive Ayesha Kapur, chef Ritu Dalmia, journalist Sunil Mehra, activist Harish Iyer, hoteliers Aman Nath and Keshav Suri and a group of IIT alumni. 

The petitioners had contended that the continued existence of section 377 severely curtailed the protection of dignity, liberty, equality and expression that the Constitution guarantees to all Indian citizens.


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