If the definition of marriage in customary laws is changed to include the same-sex union then such relationships would be recognised under statutes like Special Marriage Act (SMA) and Foreign Marriage Act (FMA), the Delhi High Court observed on Wednesday. A bench of Justices R S Endlaw and Asha Menon said the concept of marriage emanates from customary laws which do not recognise same-sex marriages and what is a marriage is not defined under the SMA or FMA.
It said everyone interprets what a marriage is according to the customary laws and once they recognise same sex marriages other statutes would too. The observations by the bench came while hearing the pleas of two same-sex couples, one seeking to get married under the SMA and the other for registration of their wedding under the FMA.
The court further said that SMA was enacted as there were no customs for inter-faith and inter-caste marriages. The bench raised a doubt as to whether the definition of marriage under the customary laws also needed to be challenged by the petitioners.
It suggested that if the petitioners wished to make any changes in their pleas to challenge the definition of marriage, as provided under the customary laws, now was the time instead of having to do it at a much later stage in the proceedings. During the hearing of the plea, the bench also said that “language in the statutes is gender neutral. Please try to interpret the law in the interests of every citizen of the country".
The remark came in response to a submission by advocate Rajkumar Yadav, representing the Ministry of External Affairs, that in the 5,000 year old history of Sanatan Dharma such a situation was being faced for the first time. Senior advocate Menaka Guruswamy, appearing for both set of petitioners, said the petitioners are not seeking relief under any customary or religious laws, rather they are seeking that the civil laws — SMA and FMA — which are applicable to all kinds of couples, including inter-caste and inter-faith, be also made applicable to them. Guruswamy also told the bench that both SMA and FMA are not based on customary laws.
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