India's LGBTQ community urges Supreme Court to recognise 'fundamental' same-sex marriage rights

Archee Roy, 34, a queer Dalit artist in the eastern Indian city of Kolkata, has been in a committed same-sex relationship for over four years. However, she cannot list her partner officially as family in office and bank records even if they were to marry, as India does not legally recognise same-sex marriages.

"India provides a space for heterosexual couples to marry but that space and right is denied to us completely," said Roy, who belongs to the so-called low caste Dalit community. "Queer people also deserve the right to marry, like any other citizen of India."

This may soon change, after India's Supreme Court on Monday referred 19 petitions to a five-judge constitution bench for consideration, with the final arguments scheduled for April 18.

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In a sign of shifting values and a challenge to Prime Minister Narendra Modi's government that has opposed gay marriage, members of India's LGBTQ community are petitioning for the nation's Supreme Court to legally recognise same-sex marriages.

The petitions come four years after the same court struck down a colonial-era ban on homosexuality.

Many same-sex couples in India solemnised their marriages after the South Asia nation decriminalised homosexuality in 2018 but their marriages remain legally unrecognised.

This means that they are not entitled to rights to own and inherit property together or apply for joint bank loans. They also do not get benefits that heterosexual spouses are entitled to from their spouses' workplace, such as pensions, bereavement leave as well as compassionate appointment - whereby dependents may be entitled to claim a deceased person's position.

"The common thread among all the prayers of different petitioners before the Supreme Court is that same-sex couples come within the legal framework entitling them to the benefits as well as protection that married heterosexual couples enjoy," said Aparna Mehrotra, litigation associate at Bangalore-based non-profit Centre for Law and Policy Research, who is representing three transgender petitioners.

In the Hindu Marriage Act, a union between two Hindus refers to a married couple as "husband" and "wife". Similarly, the Special Marriage Act reads that the "marriage between any two persons may be solemnised under this Act" but some sections of the law use gender-conforming words such as "man", "woman", "male" and "female".

Mumbai-based rights activist Harish Iyer appealed before the Supreme Court earlier in March to strike down provisions of this law that interfere with an individual's constitutional rights to be treated equally, and to extend the law to marriages regardless of the gender, sexual orientation, and sexual identity of the couple.

"The privilege to get married is a fundamental aspect of the right to life, freedom of speech, and privacy, as recognised under the Indian Constitution," Iyer said.

Hyderabad-based Jojo, who prefers to use his first name, runs Queer Nilayam, a support group for LGBTQ people. The 39-year-old said marriage is significant for many same-sex couples who are in committed relationships, to avail themselves of their basic rights and benefits.

India also legally recognises marriage of transgender people who hold a certificate documenting the gender change, but the procedure for obtaining these certificates is onerous and officials often insist on medical proof of gender affirmation procedures, which can be prohibitively expensive.

Akkai Padmashali, the first transwoman whose marriage was legally recognised in India in 2018, submitted a petition in the Supreme Court in January urging the court to define "spouse" as gender-neutral within the Special Marriage Act. This would allow transgender people who have not yet obtained certificates or undergone surgery to be legally wed.

As of now, transgender couples, whose marriages are registered, can be parents legally but for same-sex couples, only one partner has the legal right to adopt or be a legal parent.

In a filing to the Supreme Court this month, Modi's administration said it opposes recognising same-sex marriages and urged the court to reject challenges to the current legal framework brought forth by LGBT couples.

The government also said in the filing that marriage is accepted "statutorily, religiously and socially" only between a biological man and a biological woman, and that the Indian family consists of these two people and the children born out of their union.

But sociologist Shiv Visvanathan argued that there is no "ideal model" of family as the concept changes according to time, ecology, demography and livelihood.

Visvanathan added that the government is including religion because it considers itself to be the "repository of a monolithic truth and it wants to establish that certain things are not permissible".

Mumbai-based non-binary lesbian Naaz, who prefers to use only their first name, said the Indian government remains "ill-informed" and "irrelevant" in current times when gender narratives have changed globally.

Naaz, 30, added that administration's attempt to define marriage and family is an "invasion" of the basic human right to marry any one.

Naaz said many queer people consider the larger LGBTQ+ community as "family" because they provide "safety" and "unconditional love", unlike their biological families who have not accepted them as they are.

By opposing same-sex marriages, the Indian government is trying to promote the dowry system, marital rape and domestic violence that are "part and parcel" of the Indian family unit, said Hyderabad-based S Deepti, 39, who was in an abusive marriage with a heterosexual man for 12 years and entered into a same-sex relationship later.

"The government should try to eliminate the flaws in opposite-sex marriages before opposing same-sex marriages," she said.

But litigation associate Mehrotra said the legal recognition of same-sex marriage would be insufficient, and that new definitions of "spouse" would be required in existing laws around succession, adoption and divorce.

Beyond laws, family set-ups, workplaces, and social spaces, which are still largely patriarchal, have to be more accepting, Roy said.

This article originally appeared on the South China Morning Post (SCMP).

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