The decriminalisation of Section 377 of the IPC in 2018 was a landmark judgment, favouring the Indian LGBTQI community, but it’s been two years since and the law still doesn’t permit same-sex couples to marry.
For a society that boasts big fat weddings and underlines the importance of marriage, a myopic outlook persists here when it comes to inter-faith and same-sex marriages. For starters, even today we remain skeptical of accepting same-sex relationships, unwilling to change archaic laws that restrict equal legal rights to homosexual couples.
Recently, Delhi High Court sought the response of the Centre and the Delhi Government after going through two separate pleas by two same-sex couples seeking legal registration of their marriages under the Special Marriage Act (SMA) and Foreign Marriage Act (FMA), respectively.
The ongoing matters, represented by senior advocate Menaka Guruswamy, argues the petitioners don’t seek relief under any customary or religious laws and that they instead ask that civil laws (SMA and FMA) — which apply to all kinds of couples — be made applicable to them. The opposition’s argument was that the demand for same-sex marriage does not align with the 5,000-year-old history of Sanatan Dharma.
“When we have the freedom to love who we want irrespective of gender or sexual identity, then why should a secular state not recognise a union between two people?” questions Nishant Sirohi, a human rights professional.
According to Nishant, Indian society is less conservative than it is made to appear. “I have seen many families accept same-sex relationships, especially after the 2018 judgment when Supreme Court ended Section 377, and legalised gay sex,” says Nishant. “India certainly needs more debate and discourse on LGBTQI rights and identity and not just invisible quiet acceptance.” Nishant points out how it is time to stand up again and fight for marriage equality and recognition. “I think in a time when intolerance towards the ‘other’ is growing in India, marriage equality could support wider societal change and imaginaries of openness and acceptance,” he adds.
Equal treatment for all
One of the biggest challenges for same-sex couples in India right now is the legal hassles in claiming their partner’s inheritance. Another is to get actively involved in medical care if they have no constitutional rights as a spouse.
Articulating the above pointers, Noor Enayat, an activist for equal rights, cites some pressing concerns for LGBTQI couples. “Indian laws accept live-in relationships for straight couples though for same-sex couples, the laws are undefined. So a same-sex spouse cannot enjoy the extension of their rights and benefits to their partner because the law doesn’t recognise the union as constitutional,” says Noor. The equal rights activist also points out how it is unfair that a couple spends their entire life in a domestic partnership, sharing the same roof and yet unable to get custody, extend medical-care perks, get custody of an adopted child or inherit because they have no spousal privilege. “By legalizing LGBTQI marriages, the community can protect itself and have equal rights without discrimination,” she adds.
Arguments around legal validation
Since the Supreme Court decriminalised gay sex and gave the right of the union to members of the LGBTQI community, many jurists have raised the obvious question of bestowing the legal validity of a marriage on this union. However, unlike the groundswell of support that LGBTQI activists could create in 2018, they’ve been unable to generate a social space for the acceptance of same-sex marriage.
Neeha Nagpal, an advocate at the Supreme Court of India, believes that the right to privacy, as held by the Supreme Court, has multiple facets, including the right to choice of partner. “The Hon’ble Supreme Court has also very convincingly held that a homosexual relationship between two consenting adults does not violate the law. To my mind, same-sex marriages ought to be made permissible and the legal trajectory for this is headed in the right direction,” she says.
However, Abishek Kaul, a High Court lawyer and researcher at the University of Victoria, British Columbia, feels that though in the given atmosphere the courts may find themselves going against current traditional societal norms, there’s still work to be done otherwise....