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Monday, April 12, 2021

HC: Definition of Marriage by Customary Laws include same-sex, Other statues will recognize it as well

The Delhi High court on Wednesday observed, changing the Definition of Marriage in Customary laws, to include same-sex marriage then such relationships would be recognized under the statues like Special Marriage Act (SMA) and Foreign Marriage Act (FMA). R S Endlaw and Asha Menon (bench of justices) said, that the concept of marriage originates from customary laws that don’t recognize same-sex marriage and do not define marriage under the SMA or FMA.

Everyone interprets what is marriage according to the customary laws and once they have recognized same-sex marriage, other statues would recognize it too. These observations came from the bench while hearing the pleas of two same-sex couples, where one couple was seeking to get married under the Special Marriage Act (SMA) and the other was looking to get their wedding registered under the Foreign Marriage Act (FMA). The court further said that there were no customs for inter-faith and inter-caste marriages, due to which SMA was enacted. The bench also raised a doubt as to whether the definition of marriage under the customary laws be needed to be challenged by the petitioners.

What did the bench of justices suggest?  

It suggested that if the petitioners wished to makes changes in their appeals, to challenge the definition of marriage (intentionally or not), as provided under the customary law, they should do it now as it is the right, rather at a much later stage in the proceedings. “Language in the statues is gender-neutral. Please try to interpret the law in the interests of every citizen of the country,” the bench said during the hearing of the appeals.

Advocate Rajkumar Yadav gave a remark in response to a submission that represented the Ministry of External Affairs, that such a situation is being faced for the first time in the 5,000-year-old history of Santan Dharma. Menaka Guruswamy, a senior advocate appearing for both the petitioners stated that the petitioners are not looking for relief under any customary of religious laws, but they are seeking that civil laws which are the SMA and FMA, applicable to all kinds of couples, including the inter-caste and inter-faith, also be made applicable to them. She also told that the Special Marriage Act (SMA) and the Foreign Marriage Act (FMA) aren’t based on customary laws.

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