New Petition To Recognize Queer Marriages In India; This Time From OCI Cardholders

Queer couples from various walks of life have made a case for the Indian government to recognize their civil union in accordance with their rights guaranteed by the Indian Constitution. On July 6, an Overseas Citizen of India (OCI) and his American spouse put forth their petition to be allowed to visit their family in India aided by their status as OCI cardholders, a benefit extended to foreign spouses upon completion of 2 years of marriage. But not in the case of ‘same-sex’ partners? The couple is seeking answers and change.

Vaibhav Jain and Parag Mehta, both Overseas Citizens of India (OCIs) married in Washington DC in 2017. When they tried to register their civil partnership under the Foreign Marriage Act at the Consulate General office in New York, they were refused on the grounds that there are no extant laws and provisions for registration of such a marriage in India.

In an interview with the Times of India, Mehta had said: “If Vaibhav were to fall ill and be hospitalised while we are visiting [India], I would have no [marital] rights to make decisions about his health — even though I am his spouse and an overseas citizen of India.” While their quest to legalise their marriage is pending judiciary approval alongside other queer couples seeking recognition under the Special Marriage and Hindu Marriage Acts – the hearing on the matter has been adjourned to August 27 of this year – a fresh petition has been added to the mix.

This new petition is from Joydeep Sengupta, a Canadian citizen and an OCI cardholder since 2011, who currently resides in Paris. Sengupta married an American Citizen, Russell Stephens (co-petitioner) in 2012 in New York. They recently had their first child together and wish to apply for the status of the spouse of an OCI for Stephens, so he can access a multiple entry life-long visa to visit India.

Before filing the petition, the couple, on account of not being citizens of India, approached Mario Dpenha, a queer rights academic and activist pursuing PhD at Rutgers University to file RTI applications to understand the status of queer non-Indian partners of OCIs. When there were no responses to the RTI, the trio proceeded to jointly file the petition for Stephens’ recognition under the Citizenship Act.

In an interview with Gaysi, Dpenha said: “I filed three RTIs, one with the Ministry for Home Affairs itself, one with the MHA Foreigners Division and one with the Ministry for External Affairs, Consular, Passport and Visa Division, all seeking the meaning of term “registered” marriage in Section 7A(1)(d) and the list of countries whose marriages are legally recognized by India. However, these RTIs were transferred back and forth by the Ministries, as a result of which the queries were never answered.”

The couple hopes to visit India with their child and meet with Sengupta’s family in India from time-to-time. However, without recognition of their marriage, Stephens will not be permitted to visit alongside them.

“As per the notifications dated 21.10.2020 and 04.03.2021 by the Ministry of Home Affairs, the Foreigners Division of the Ministry of Home Affairs has begun to re-allow entry of all OCIs in India (which was paused last year due to the pandemic) and said that OCIs shall be entitled to grant of multiple entry lifelong visa for visiting India for any purpose. This facility is not available to foreign nationals,” Dpenha explained to Gaysi. “Mr. Stephens seeks to attain OCI status at the earliest in order to avail of this facility so that he can spend time in India – where Mr. Sengupta’s family lives – with his spouse and the baby they are expecting. And indeed, to reach his husband and baby immediately in case of illness or other difficulty as needed during the pandemic.”

Although the petitioners don’t expect swift redressal for their grievance by the Indian Judiciary, considering that the other petitions for ‘same-sex’ marriage have been pending for a while now, they hope the Delhi High Court will guarantee equal dignity to all couples, irrespective of sexual orientation or gender identity, by reading the Citizenship Act, Special Marriage Act and the Foreign Marriage Act in accordance with the Constitution.

About the author

Tejaswi Subramanian

Tejaswi is journalist and researcher whose attention is captured by post-colonial human relationships at a time of the Internet of Things. She can't wait to become a full-time potter soon, though!