Mumbai: On Monday, during a PIL hearing for legalizing gay marriages in India, the solicitor general, Tushar Mehta, argued that “our laws, our legal system, our society, and our values do not recognize marriage, which is a sacrament, between same-sex couples”. Mehta, who was representing the government, raised objection to the PIL filed for legalizing same-sex marriages on two grounds. “Firstly, the petition is asking the court to legislate. Secondly, any relief granted will run contrary to various statutory provisions. Unless court does violence to various laws, this cannot be done,” said the Solicitor General.
While this opposition from the center is disheartening for the LGBTQA+ community members, it isn’t surprising at all, said *Vidya, a Pune based LGBTQA+ rights activist. “Even in 2018, when the Navtej Singh Johar case (which resulted in the decriminalization of all consensual sex among adults, including same-sex relations) was being argued in the court, the Centre had backed off from the main issue (of decriminalizing same-sex relations) at the time. But they had very clearly said that we want the court to legislate only on section 377, and not on the broader questions of queer rights. So, from then on, it was evident that even though they didn’t oppose section 377 being struck down, they were not willing to let go of other things.”
“What they are saying now is not at all surprising. It is exactly the language that all the western conservatives use,” she added and pointed out that there are not only references to homosexuality in historical and mythological texts but also in the recent history of India.
“Many members of the LGBTQA+ community want the same marriage rights that heterosexual couples enjoy and denying same-sex couples the legal right to marriage or a civil union leads to stress, anxiety and sometimes depression in many of them,” explained Balachandran Ramiah, who is a part of GayBombay, a group that works with the LGBT community in Mumbai. “There is no need to oppose it because it doesn’t affect anybody else, although for the longest time in many countries, including the United States, there was a feeling that if you give same-sex marriage rights, it will dilute the institution of marriage. This was obviously incorrect,” added Ramiah.
He pointed out that in the absence of such a basic right as legally marrying someone they love, several LGBTQA+ community members’ mental well-being gets affected. “The inability of a same-sex couple to lead a happy life together often time leads to mental health issues. There had also been so many cases of same-sex couple suicides. Recently, a gay couple died by suicide in Assam because they felt so hopeless that they couldn’t see any future together. They thought they will never have any right to live together as a couple,” said the activist. Ramiah added that the only silver lining from the Monday hearing of the PIL was that the Delhi High Court judges were progressive in observing that the country has to move ahead with time. The court also questioned the need for a PIL and instead stated that same-sex couples, who are themselves affected by the absence of a legal right to marry, should approach the court themselves.
Ramiah stated that while section 377 was the reason why no same-sex couple approached the court for marriage rights prior to 2018, it has changed in recent years. Earlier this year, a gay couple from Kerala moved the Kerala High Court challenging the provisions of the Special Marriage Act, to seek permission to register their marriage. The case is still ongoing.
Harish Iyer, a Mumbai based equal rights activist, said when we talk about marriage rights for same-sex couples, it is not just so that they can have a Hum Aapke Hain Koun-style marriage. The legalisation of same-sex marriages is of crucial importance because of all the other rights that individuals are entitled to receive after they get married.
“Tomorrow, if I go and find a boyfriend, and get married to him, no one can stop me from doing that. But, it will not have legal sanction. If I am dying, my partner will not get to decide whether the plug can be pulled off,” pointed out Iyer. He added that there are adoption rights, property rights, spousal support as well as divorce rights that can only become legitimate rights for individuals in same-sex marriages if same-sex marriages are legalized in India. Globally, many countries have granted marriage rights, as well as civil union rights to same-sex couples.
*Names have been changed to protect the identity of the individual.