Swapnil Kadam - a Mumbai based matchmaker, and founder of matrimonial site Soul-Mates -- was ecstatic on the day Supreme Court read down Article 377 of the Indian Penal Code. Kadam had been planning for the last two months to extend his match-making services to the LGBTQ community members. However, since same-sex relationships were illegal in India, he had to wait for the Supreme Court to rule on section 377 before he could do that.
"On the day of the verdict, I officially announced that my company, Soul-Mates, will also cater to LGBTQ community members from now on," said Kadam. "However, my biggest challenge as of now is that I do not have a database. Therefore, I had been using social media and tagging famous LGBTQ activists so that they can help me reach out to more members of the community," he added.
Kadam's intentions are admirable. He is offering his services to the LGBTQ community free of cost. "I personally believe that the LGBTQ community has been marginalized for a long time." said the matchmaker. Kadam said that he already has an established matrimonial business, so he is not looking to make profits out of this new venture; it is just a small gesture from his end to show support to the LGBTQ members. Therefore, he also doesn't care if dating apps like Grinder, OKCupid etc already exist in the market and can prove to be a competition.
Kadam claims that unlike these apps, his services will vet each client and seek the permission of both involved before connecting them. The matchmaker is aware that same-sex couples cannot marry according to Indian laws, however, he said, "...just connecting two people is a success story for me as of now. They can marry as and when the law comes in."
Kadam isn't the only person offering matrimonial services to the LGBTQ members in India. Previously, Urvi Shah's Arranged Gay Marriage also helped people find same-sex partners. An NRI, Benhur Samson, too had opened a marriage bureau to help LGBTQ community members find love in India as well as abroad.
However, despite a growing number of marriage bureaus and matrimonial services willing to cater to the LGBTQ community, there is no legislation or law that legalizes same-sex marriages in India.
"What the 377 verdict has done is that it has decriminalized homosexuality. But, that has not given the LGBTQ community in this country all the civil rights which heterosexual individuals enjoy. " pointed out Civil Rights Lawyer, and Counsel at Chambers of Mahesh Jethmalani, Mugdha Pande.
"They still cannot marry or adopt. They still do not have a right to a family. The reason why they do not enjoy those rights as heterosexual people in India do is because according to the Hindu Marriage Act, Special Marriage Act, or for that matter any marriage act that we have in India, marriage is defined as a union between a man and woman. Because of this legal definition, it sort of prevents people of the same sex to get married." she added.
Pande noted that reading down of 377 is actually the extent to which the court could circumvent or be creative with the law. However, in the case of marriage, the court cannot change the statute that describes marriage as a union between a man and woman to a bond between two individuals.
"That initiative will have to come from the Parliament. The court has done its job by decriminalizing homosexuality," added Pande.
Sanjay Hegde, Senior Advocate, Supreme Court noted that there are two ways in which gay marriages can be legalized in India.
"Parliament needs to take a call on whether or not to introduce a new bill or amend existing marriage laws in order to legalize gay marriage," said Advocate Hedge. "On the other hand, another way can be if a LGBTQ community member moves the court saying, 'I want to marry someone and a particular section comes in my way,' and if he wants to mount a constitutional challenge to that. In that case, the court can intervene," he observed.
"The second route was taken by several American petitioners in the United States when they fought to legalize gay marriage in the past. They challenged the legislation which described marriage as a union between man and woman. Then, the court struck down those provisions as discriminatory. The court said that it needn't be between only man and woman but it could be between two human beings. After that, several states in the United States also passed their own legislation." noted advocate Hegde.
Marriage is a social construct. Therefore, as much as the legalization of gay marriages will help diminish discrimination against LGBTQ community members, it is also important to make gay marriages socially acceptable.
"The society also has to prepared to accept gay marriages...There are many hurdles and stages one has to overcome before we talk about legalizing gay marriages... You allow LGBTQ community members to legally marry and then no one rents out houses to them. Is that a good situation? Therefore, making members of the society more aware of the LGBTQ community and consulting all stakeholders is crucial," pointed out advocate, Monika Arora.
Arora also said that while legalizing gay marriages in India would mean amending existing laws or introducing a new one, the job of the Parliament doesn't end there.
"It's not just the marriage laws, all the provisions related to man-woman marriage has to be changed. For example, We have to think about all the rights and protection given to a woman in marriage under domestic violence act, dowry prohibition act, maintenance act, succession act, adoption act, guardianship act and see how they can be applicable in gay marriages," added Arora.
Despite the legal shortcomings that same-sex marriages may face across the world, approximately 26 countries including The United States, United Kingdom, and Australia have legalized same-sex marriages and a few others are already on their way of doing so. In the United States, for example, the legislation to legalize gay marriages was brought about on a state to state basis. The issue was important in several states, especially where gay votes mattered. Ireland not only legalized gay marriages but also elected a gay prime minister within a matter of just two years.
So, there is hope for India as well. However, the fact that LGBTQ movement is still relatively new and the community is yet to matter as a vote bank may be a hindrance in bringing about gay-friendly legislation -- for marriage as well as other civil rights. Also, most importantly, what will ultimately determine if LGBTQ friendly legislations are passed by the Parliament, is the political will of the government.
Therefore, while there is every reason to celebrate the 377 verdict, LGBTQ community, and their allies will have to remember that it is only just an initial step towards the inclusive society they dream of.