Last week, the apex court headed by Chief Justice D Y Chandrachud heard public interest litigation filed by two LGBTQ couples arguing that the state’s refusal to recognize them as married violated their constitutional rights.
The first petition was filed by a couple who have been together for almost a decade and held a commitment ceremony last year, where their relationship was blessed by their parents, family and friends.
The second petition was filed by a couple who have been in a relationship for 17 years and are raising children together. However, the couple says their lack of marriage status means they cannot have a legal relationship with their children.
Other petitions seeking recognition of same-sex marriage under India’s 1954 Special Marriage Act (SMA) are pending in state-level high courts in Delhi and the southern state of Kerala.
“Barring us from marriage violates the right to equality. We have told the court that the inability to marry has implications for personal liberty, adoption and financial matters. The members of the LGBTQ community have the same human, fundamental and constitutional rights as other citizens,” one of the petitioners told DW anonymously, as his legal case is ongoing.
What is the path to legalization?
After India’s Supreme Court decriminalized homosexuality, many have raised the question of taking the step towards legalizing same-sex marriage.
The Special Marriage Act (SMA) is a law that was passed originally to legalize interfaith unions. Now, LGBTQ couples are arguing their marriages should be recognized under the SMA.
Along with not recognizing same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.
An LGBTQ person can apply to Central Adoption Review Authority for adoption only as a single parent.
Without the legal right to marriage, LGBTQ couples have still been participating in commitment ceremonies, which are not legally binding but express a couple’s lifelong commitment to one another. Couples often have big destination weddings and carry out traditional Indian wedding rituals.
“We are looking forward to the right to be like everyone else. Without any discrimination, without any discernment, without any judgment,” LGBTQ rights activist Mohnish Malhotra told DW.
Other rights demanded by the LGBTQ community include that of owning and inheriting property, and of including their same-sex partners on hospital and insurance forms.
“I think decriminalization was the first step. There is still no positive legal inclusion for gays and lesbians in the Indian legal framework, and marriage should be seen in that context,” Senthi, who uses one name, from the LGBTQ literary organization Queer Chennai Chronicles, told DW.
Resistance to LGBTQ marriage in India
Although awareness about the LGBTQ community has increased in India, there is still stigma and resistance to complete acceptance. So far, 33 countries around the world have recognized same-sex marriage and civil unions.
The Bharatiya Janata Party (BJP) government in the northern Uttar Pradesh state has described same-sex marriages as being contrary to Indian culture and religion in statements on a petition filed by a same-sex couple at a high court in Allahabad.
The government said same-sex marriages should be deemed invalid under Indian laws.
“We have no objection to two people living together, but we cannot have judges be the arbiter on the issue of same sex marriage. There must be a larger societal debate, and parliament would need to be roped in on this matter,” a senior BJP government counsel, requesting anonymity, told DW.