KOCHI: The hearing on equal rights to marry is heating up in the Supreme Court, where a five-member constitutional bench is hearing multiple petitions of queer people.
In Kerala, Sindhya Saji and Vidhya M are eagerly following the court proceedings. The Thiruvananthapuram-based couple have been in a relationship for the past eight years and sought to get married three months ago.
“But, there was no legal recognition for the marriage. We didn’t want to play dress-up,” says Sindhya, who works in a private company. “We will get married as soon as the law on equal marriage rights is passed.”
The 30-year-old rues that her relationship has “no social or legal validity”. Elaborating on the couple’s plight, Sindhya says: “Vidhya was a boxer in college, and had suffered an injury. It continues to trouble her; she needs to get surgery. However, the hospital asks for the signature of the husband if the woman is married, or her parents or blood relatives, before the surgery.
“I tried explaining I was Vidhya’s partner. But, the hospital replied that it was not valid. Vidhya’s family hasn’t spoken to her for five years. Now, how will she get the surgery done?”
A similar incident happened while Vidhya wanted to put Sindhya’s name as the nominee for her provident fund. “Vidhya works in a private company. She can hold the job, there is no discrimination there. But she can’t put my name as a partner, as it is not valid. Our relationship, apparently, is not valid,” sighs Sindhya.
“If one of us dies, the other won’t have any rights – even to see the body. The grieving partner will be left alone, in the middle of the road.”
‘Life with dignity’
Sindhya and Vidhya have dreams: to get married, build a home, adopt a baby, and be a family in their own hometown, Thiruvananthapuram. “We moved houses for the 11th time recently. While house hunting, we cannot reveal that we are a couple. We will never find a place then,” they add.
“Our life depends on the SC’s judgment. If the court grants LGBTQ+ people the right to marry, then society will gradually accept queer relationships,” the duo says.
“We want to live together and be a family – with dignity.”
Mohammed Unais, who works as a teacher, echoes similar hope. “Once the law accepts us, social acceptance will follow,” he says.
He notes that in most countries where marriage equality is socially accepted, it all began with court judgments.
“If you look at history, society started accepting changes and evolving with court verdicts. It was through the legal course that society put a stop to sati, for instance. Same was the case with widow remarriages,” says Mohammed.
“We are not asking for any special privilege, but the basic right to marry and live as a family.”
He highlights that, currently, queer couples cannot operate joint bank accounts, nominate partners for medical or life insurance, or adopt children.
“Marriage equality will open the door to rights to adoption, succession and inheritance rights, and more,” says Mohammed.
‘Bouquet of rights’
In the Supreme Court, senior lawyer Menaka Guruswami had stressed on the same point. “Marriage is not only a question of dignity. It is also a bouquet of rights that LGBTQ people are being denied post-Johar (Navtej Singh Johar v. Union of India, which led to the decriminalisation of consensual homosexual sex in 2018). Bank account, life insurance, medical insurance,” she noted.
Menaka and her partner, lawyer Arundhati Katju, have been arguing with a team of lawyers, including former Advocate General Mukul Rohatgi, on around 15 petitions demanding marriage equality.
Currently, the arguments are on the Special Marriage Act (SMA) of 1954 which has provisions for civil marriage for people of India and all Indian nationals in foreign countries. However, SMA uses the terms ‘husband’ and ‘wife’. There have been arguments to change the usage to ‘spouse’.
“If we [queer people] are equal, we require an affirmative nod from the court — ‘You are equal, you will not be treated as lesser, and therefore, there will be full enjoyment of the right to life, dignity, privacy at home’,” Rohatgi argued on behalf of the petitioners.
‘Human rights violation’
According to Kerala High Court lawyer J Sandhya, equal marriage rights under SMA will mean spouses get the right to property, maintenance, and succession rights.
“The connected laws will also gradually change. Essentially, granting equal marriage rights will not affect anyone or already existing marriages, but bring in the people left out of the ambit of the law,” she says.
Constitutionally, Sandhya adds, it would be illegal to not allow equal marriage rights. “A government shouldn’t say a section of people is not allowed certain rights,” she adds. “The right to community and family is a right of every citizen. Disallowing that is a human rights violation.”
‘Right to have a family’
Deepa Vasudevan, the founder of Sahaytrika, which works for LGBTQ+ rights, has been closely following the court proceedings live. “We are part of an informal network known as the National Network for LBI Women and Trans Persons. Our petition is being heard now,” she says while speaking to TNIE.
“Marriage rights involve so many layers, complexities. Our society is marriage-centric, and that gives legitimacy to relationships and the right to have a family is inherent within it,” she says. “It protects the community against violence, and also gives access to the privileges heterosexual people take for granted, the fundamental rights.”
Objections and acceptance
The Union government had earlier stated in an application that equal marriage rights was an “urban, elitist” concept, and “the competent legislature will have to take into account broader views”.
Chief Justice D Y Chandrachud, however, observed that the elitism argument was “just prejudice and has no bearing on how the court will decide the case”.
On Sunday, the Bar Council of India (BCI) passed a resolution insisting that the matter be left to the legislature. “In view of the sensitivity of the issue of same-sex marriage, having a spectrum of stakeholders from diverse socio-religious backgrounds, it is advisable that this is dealt with after an elaborative consultation process involving different social, religious groups by the competent legislature,” it said.
Meanwhile, a collective of parents of LGBTQ+ people, Sweekar, requested the court on Tuesday to grant equal marriage rights. “We desire our children and children-in-law to find legal acceptance for their relationship under the Special Marriage Act. We are certain that a nation as big as ours which respects its diversity and stands for the value of inclusion, will open its legal gate of marriage equality to our children too,” the organisation noted in a letter. “We are growing old. Some of us will touch 80 soon; we hope that we will get to see the legal stamp on the rainbow marriage of our children in our lifetime.”
As Solicitor General Tiushar Mehta continues his arguments on behalf of the Union government on Thursday, numerous queer couples, like Sindhya and Vidhya, will track the court proceedings keenly. Each word the court says matters to them.
LGBTQIA+ explained
LGBTQIA+ is an acronym for “lesbian, gay, bisexual, transgender, queer, intersex and asexual”, with the “+” sign denoting other sexual orientations and identities
Lesbian: Women or non-binary individuals attracted to women
Gay: Individuals attracted to the same gender, regardless of sex or gender identity
Bisexual: Individuals attracted to more than one gender, though not necessarily in the same way or to the same degree
Transgender: People whose gender identity or expression differs from cultural expectations based
on the sex they were assigned at birth
Queer: To express identities and orientations counter to the mainstream, including non-binary and gender-expansive identities. Previously used as a slur, now reclaimed by many in the LGBTQIA+ community
Intersex: Individuals born with variations in sex traits and reproductive anatomy
Asexual: Often called “ace” for short, it refers to Individuals who experience no, little, or conditional sexual attraction