Five years after Section 377 landmark, queer community hopes for an epoch
HT analysed the pleas before the top court seeking to legalise same-sex unions, to understand a moment that will serve as a touchstone for many lives
Like most things in India, it began at a wedding. Kajal Chauhan and Bhawna Singh met in the summer of 2018. Sparks flew at first sight, and the two women, 28 and 23 respectively, started chatting. They lived in different states, under the watchful eyes of parents who abhorred same-sex desire and were willing to use brute force to stop the two women from being together. In July that year, unable to deal with escalating violence at home, Singh ran away to Chauhan’s house in Punjab; but her parents traced her in two days; in the face of a torrent of abuse and threats, the younger woman, then barely an adult, was forced to commit to severing the relationship and never talking to Chauhan again. She returned home, resigned to the life of desolation and despair that is everyday for thousands of queer people in India.
Then something looked up. On September 6, 2018, the Supreme Court decriminalised homosexuality. The judges’ eloquent defence of same-sex desire made headlines across the world and gave the two women the courage to fight for their love.
They ran away from home, braving threats of murder, and decided to make a life together. Five years on, they are again in front of India’s highest court, this time seeking changes in the 1954 Special Marriage Act (SMA) that will allow them to get married.
“My family has never stopped harassing us. They tell my partner that I’ll eventually come to my senses and leave her [to marry a man]. It’s been more than four years. We’re tired of running,” Singh said. “If we get married, it will be a legal proof of my love for Kajal.”
Singh and Chauhan are part of a 50-odd-strong club of people – lawyers and actors, economists and students, therapists and businesswomen, dancers and consultants, sales executives and accountants – pushing to legalise same-sex unions in a country that criminalised homosexuality with life imprisonment before September 2018. In their way stands the Union government, which has strongly opposed any such move on the grounds that it infringes on Parliament’s prerogative and a clutch of religious bodies. Hearings before a five-member Constitution Bench began on Tuesday.
If the petitioners succeed, it will mark a global epoch because no other country has gone from decriminalisation of same-sex relationships to formal recognition of marriage this quickly, or without intervening steps such as civil unions or partially recognised partnerships. It may also pry open a window for other people to come before the court and challenge family laws, and fundamentally transform the understanding of marriage in a way that has not happened for decades. “This is an exciting moment for family law in India,” said Saptarshi Mandal, a professor at Jindal Global Law School. HT analysed all 20 petitions before the court to understand this moment.
The quest for an answer
Why is marriage important? In India, this question can have many answers, and these are reflected in the petitions — dignity, respect, respectability, financial security, equal opportunity, elderly care, parity with other countries, constitutional rights to privacy, freedom of expression and freedom of religion. But for Singh and Chauhan, the overwhelming one is safety.
In 2018, after Singh’s family learnt of her relationship, they locked her up, confiscated her phone, and she was thrashed by her mother routinely. When she escaped her illegal confinement, her family members threatened Chauhan’s father and mother. Finally, the lesbian couple moved the Delhi high court in April 2019 and were granted police protection. Despite that, Singh’s family never stopped calling and threatening Chauhan. In one instance, they told the landlord of a house the two had moved into that the young women were on drugs. The couple eventually left the Capital and made a home in another city.
“We’re more settled now. We have friends. I have a supportive boss who knows of my relationship. We’ve even started interacting with Bhawna’s family after no contact for two years. But, if I were to be completely honest, we are still afraid of them,” Chauhan said.
Their petition, as well as at least five others, make a similar argument: that their vulnerability arises from how easily their relationship can be erased or their partner excluded, owing to the complete lack of recognition of their relationship in the eyes of law. “Not being able to live their lives jointly de jure though doing it de facto makes it a herculean task for them to access even basic services like putting their partner’s name as a nominee in insurance or bank accounts,” their plea stated.
Petitioners Abhijit Iyer-Mitra, Gopi Shankar, Giti Thadani and G Oorvasi have challenged the Hindu Marriage Act, saying that Section 5 of the Hindu Marriage Act does not specify that the marriage must be between a Hindu man and a Hindu woman, but instead refers to marriage between “two Hindus”. The petition invoked Article 21, which guarantees right to life, arguing that right to marriage was part of that fundamental right.
Three petitions challenged the Foreign Marriage Act (1969) and the 1955 Citizenship Act, including Joydeep Sengupta who asked that his partner, Russel Blaine Stephens, a resident of France, be permitted to apply for an Overseas Citizen of India (OCI) card under the rules of the Citizenship Act (1951). The couple was legally married in the United States in 2012 and their marriage is recognised in France. Vaibhav Jain and Parag Mehta, who were married in the US, have also challenged the Foreign Marriage Act, arguing that the law was responsible for their marriage not being registered by the Indian consulate in Washington DC in 2020.
Rituparna Borah and others argue that mere recognition of spousal marriage is not enough, and the court should go further and recognise the right to have a “chosen family” that can assume the rights and responsibilities typically reserved for natal families. Their petition includes three anonymous couples — each of them in hiding from their respective birth families on account of extreme violence that they and their partners faced. “Runaway LBI [Lesbian, Bisexual and Intersex] women and trans persons often wish to marry each other and are seeking to secure some legal and social legitimacy for their relationship, particularly given the hostility, threat and violence that is inflicted on them not only by society at large but specifically from family members, opposed to their choice and decision….this necessitates that the law recognise that LGBTI persons often form intimacies not through blood related ties, but bonds forged through mutual care, love, understanding and respect,” their petition stated.
But even when the family is supportive, legal recognition is necessary, petitioners Nikesh PP and his partner Sonu MS say. Kerala residents Nikesh and Sonu exchanged garlands at the Guruvayoorappan temple in 2018. Two years later, they moved the Kerala high court as they were unable to register their marriage under the Special Marriage Act, on account of the gendered language in the act. “People just refused to accept that we were married, they refused to grant us basic amenities that other couples can take for granted,” Nikesh said.
A rights question
But the bulk of the petitions, 15 at last count, target India’s secular marriage law, the 1954 Special Marriage Act. The law, passed by Parliament in a haze of controversy, allows people to bypass customary religious personal laws and get married. But it comprises provisions such as a mandatory 30-day waiting period, police verification, public display of the names of the couple in some states, and notices sent to their natal families – all aspects weaponised by right-wing groups in recent years to thwart intercaste and interfaith unions.
The Supreme Court hinted on Tuesday that it will limit itself to aspects of SMA and steer clear of personal laws — a step forward, but not the radical change some of the other petitions sought.
The 15 petitions cite articles 14, 15, 19 and 21 of the Constitution as legal grounds on which the law discriminates against lesbian, bisexual, gay, transgender, queer and intersex (LGBTQI) persons in relationships. They argue that the right to marry is a fundamental right and is connected to other fundamental rights of dignity, equality and freedom granted in the Constitution.
Three trans-rights activists, including Bengaluru-based Akkai Padmashali, say SMA be changed to the word, “spouse” rather than “husband” or “wife” to include all persons irrespective of their gender identity and sexual orientation. “Laws that restrict rights based on notions of biological man or biological woman are arbitrary and violate constitutional morality. They undermine our dignity and this lack of equality in the 21st century. Dignity cannot be compromised,” Padmashali said.
Singh and Chauhan’s petition raises objections against the “notice, domicile and objection” framework of the SMA, which stipulates that the couple is required to notify a marriage officer, who is required to affix the details of the couple in a “conspicuous place” for a 30-day notice period during which time anyone can raise an objection to the proposed marriage, following which the officer is obligated to decide upon the matter within 30 days. and has the powers of a civil court in doing so.
They say this places couples like them at a disadvantage as they already face stiff familial and social opposition. “There are countless cases where individuals have no choice but to keep their relationship a secret from their families… Familial and social objections are likely to be particularly strong in the interregnum period between a publicly-declared intention to marry and the solemnisation of the marriage itself,” their petition said.
But these demands may face a hurdle. Mandal argues that Hindu personal laws are embedded in the structure of SMA, and gives the example of Section 21A, which says that if two Hindus (or Buddhists, Sikhs and Jains) are getting married under SMA, they will be governed by the Hindu Succession Act – which only recognises a “widow” as the successor in the case of a Hindu man’s death. This means that either succession would become inoperative, or the court will have to insert or reinterpret words under the Hindu laws. Similarly the Foreign Marriage Act also uses gender-specific terms such as “bride” and “bridegroom”, which the court will have to replace or reinterpret if it decides in favour of the petitioners. “In the history of family law, the Supreme Court has generally played it safe. Even when it had good reasons to strike down a discriminatory provision, it resorted to creative interpretation, which still retained the provision. While in case of other laws, courts have not shied from striking it down, in the case of family laws, they have largely allowed space to the legislature. But this case opens up the space for challenging various aspects of family law in general. In that sense, this is an important moment,” Mandal said. This is also an opening the government wants to use in its argument that it is Parliament, not the courts, that should hold the prerogative of recognising and creating social institutions.
The choice not to recognise same-sex marriage is a facet of the legislative policy, the government said in an eleventh-hour petition, adding it is not a dispute fit for the court to adjudicate upon in the wake of a clear legislative policy and compelling state interest in upholding biological notions of man and woman.
“A decision by the court in recognising the right of same sex marriage would mean a virtual judicial rewriting of an entire branch of law....Given the fundamentally social origin of these laws, any change in order to be legitimate would have to come from the bottom up and through legislation...a change cannot be compelled by judicial fiat,” the Centre argued.
Either way, the case is transforming the popular understanding of marriage and shaping the debate around gender, sex and union in a way that has only been done a handful of times before — in the 1950s with the reformation of personal laws, in the row over alimony and religion in marriage in the 1980s, and the debate on sexual violence and marital rape in 2012-13.
From cradle to grave
But its not just the act of marriage that’s at stake, argue some other petitioners, but a “bundle of rights and entitlements” that affect an individual from cradle to grave, and even after death.
Petitioner Parth Pheroze Mehrotra’s partner has two adopted sons but Mehrotra does not have any legal claim over the children. His petition lists the various ways in which this poses complications, which a heterosexual couple would not face. “The practical problems range from day-to-day complications such as none of their paperwork having his name as a parent in the present day, to far reaching and deeply personal issues such as the children not having the rights granted to any other child of a parent, such as the right to someday make end of life decisions for Petitioner no. 1 [Mehrotra].”
Amburi Roy and her partner have sought a change in the adoption regulations, which require applicant couples to be in a heterosexual marriage for two years. Though the petitioners, a lesbian couple, are married in Germany, their petition stated “they miss their homes and want to return to India to lead a regular family life and adopt a child, like any other married couple.”
Petitioners Aditi Anand and Susan Dias’ petition also lists out the monetary penalties that same-sex couples face. Section 80 C of the Income Tax act permits deductions on the total income assessed when such sums are paid on behalf of the child — but these would be denied to a person when they make such payments on behalf of their partner’s child. The child cannot also be recognised as a dependent of their parent’s partner, which closes off a swathe of entitlements guaranteed to children of hetrosexual couples, including inheritance of joint family property.
The government disagrees. The National Commission for Protection of Child Rights (NCPCR) said children of same-sex couple are “affected in both social and psychological aspects” and allowing adoption by same-sex parents is akin to “endangering the children”.
The fate of the petitioners will be decided over the next few weeks. If the petitioners succeed, it will make India only the third country in Asia to legalise same-sex marriage. India would have leapfrogged countries such as the United Kingdom, where the journey from decriminalisation to marriage took three decades or France, where it took two centuries. But even by getting their day in court, the petitioners have created a landmark. “As we did on the day we filed our petition three years back, we take this step with continued and unwavering faith in our Constitution,” said petitioners Kavita Arora and Ankita Khanna in a statement on social media. “...we carry and represent the hopes of millions of LGBTQIA+ people, allies and families…we are not alone.”