After a historic win in 2018, when the Supreme Court decriminalised gay sex; India's LGBTQIA+ community is mounting a legal challenge that would allow legal recognition of same-sex marriages here.
Three same-sex couples along with others from the LGBTQIA+ community have filed four pleas in two high courts across the country.
Last week, on October 14 the Delhi High Court issued notice on two pleas which sought expansion of the provisions of the Special Marriage Act, 1954 to include same-sex marriages. The pleas also sought recognition of same-sex marriages under the Foreign Marriage Act, 1969.
On September 14, defence analyst Abhijit Mitra Iyer, he is also a member of the LGBTQIA+ community along with intersex activist Gopi Shankar M, Giti Thadani—founder Sakhi collective journal of contemporary and historical lesbian life in India and transgender activist G. Oorvasi challenged the provisions of the Hindu Marriage Act, to include same-sex couples.
Earlier this year, the Kerala High Court had issued notice on a plea filed by Nikesh and Sonu, considered to be the first married gay couple who challenged provisions of the Special Marriage Act to include gay marriages.
All petitions have a common thread. The existing marriage laws in India violate the petitioners right to marry a partner of their choice. "Expression of love, growth of one's personality within a relationship and development of an identity of union will be incomplete if the law refuses to recognize same-sex marriages…" the plea in the Kerala High Court read.
The Kerala plea was filed in January, but, the other three pleas in the Delhi High Court were filed in September and October after the pandemic brought on by the novel coronavirus and subsequent nationwide lockdown.
While the COVID 19 pandemic "jolted" Dr. Kavita Arora and Ankita Khanna "into the realization that life is unpredictable and transient", Vaibhav Jain and Parag Mehta are unable to visit India since their "lawful" marriage is not recognized under the Foreign Marriage Act.
Also Read: Orissa High Court Reiterates Gay Couples' Right To Live Together
Without marriage, petitioners are strangers before law
The three pleas in the Delhi High Court deal with at least three different personal laws that govern the rules for marriage in India.
Arora and Khanna, who have been in a relationship for eight years, said: "the institution of marriage is a legal and social recognition of the love, support, security, and emotional bond a couple offer each other."
"The institution of marriage is a gateway to crucial legal protections and recognition to form a family," Arora and Khanna said. "All couples value love, commitment, support and security. There is no intelligible difference between the relationship of opposite-sex couples and same-sex couples," they argued and thus there was "no legitimate objective in excluding same-sex marriages…".
"Without marriage, the Petitioners are strangers in law," the couple asserted.
Nikesh and Sonu, faced religious and cultural discrimination because of the stereotypical homophobia they carry. With the knowledge that religious/temple authorities would not solemnize their marriage, they turned to the country's secular laws.
For Jain and Mehta, problems arose in wake of the pandemic, since Mehta, who is an OCI cardholder, cannot visit his in-laws, other family and friends who live here in India due to the restrictions in place.
Iyer's plea argues that "any two Hindus" can marry under the provisions of the Hindu Marriage Act, 1959. This could thus be expanded to include homosexual marriages as well.
Laws are gender-neutral: HC
The Delhi High Court while hearing Arora's plea (the court was also hearing Vaibhav Jain and Parag Mehta's plea where they have sought recognition of their marriage under the Foreign Marriage Act) observed that "laws are gender-neutral". It had advised the Centre not to treat this issue as an adversarial litigation and try interpreting the laws for citizens of the country. "Make life of every citizen smooth," Justice Anu Menon had requested.
The Centre, represented by Kirtiman Singh, had agreed and said, he would file a reply.
During arguments, the bench had also observed that marriage laws were not defined in India and remained customary. "Because there was no inter-faith marriage, we came up with a special statute. If any corrective measures are to be taken, it should be taken at this stage...," Justice Rajiv Sahai Endlaw had pointed out.
Different pleas, different reactions, Centre
The Centre's reaction on October 14 is a change from its stance a month earlier when it told the high court that same-sex marriages were "not permissible" since "our laws, our legal system, our society and our values do not recognize a marriage, which is a sacrament, between same-sex couples".
Solicitor General Tushar Mehta's reaction on September 14 came on Iyer's plea. The division bench of the Delhi high court led by Chief Justice DN Patel had at the time observed that though "changes were happening across the world" this may not hold true for India.
In the Supreme Court, during the landmark Navtej Johar case—where homosexuality was decriminalized—senior advocate Mukul Rohatgi wanted to expand the scope and ambit of the arguments to include personal rights, however, Tushar Mehta—who was representing the Centre as the additional solicitor general at the time, had sought to confine the mandate to simply decriminalising Section 377.
Laws penalizing homosexuality irrational, indefensible and manifestly arbitrary: SC
A catena of judgements supports an individual's right to choose a partner. Justice Rohinton Nariman in the 2017 SC verdict in KS Puttuswamy, set the stage when he observed that the concept of one's right to privacy "has travelled far from the mere right to be let alone to recognition of a large number of privacy interests…" to include among others, "rights of same-sex couples—including the right to marry…".
In the March 2018 Shafin Jahan verdict, the SC said, "The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms."
And finally, the landmark September 6, 2018 verdict where the Supreme Court decriminalized homosexuality under article 377 of the Indian Penal Code. The five-judge Constitution Bench had called the 160-year-old colonial law as "irrational, indefensible and manifestly arbitrary".
"We have to vanquish prejudice, embrace inclusion, and ensure equal rights," Dipak Misra, the Chief Justice of India at the time had said.
"With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a whole lot of reasons including emotional companionship," Justice Misra had said.
More recently, high courts have come to the rescue of several transgenders who sought implementation of their rights. in 2019, the Madurai Bench of the Madras High Court had ruled that a 'bride' under the Hindu Marriage Act would also include transgenders and intersex persons who identify as women. While, in August 2020, the Orissa High Court reiterated one's right to self-determine their gender and their right to choose their partner on a plea filed by a 24-year-old after his partner—Rashmi (name changed) was forcibly separated from him.