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LGBTQ Nation: The lawyers & plaintiffs fighting for marriage equality in India have no plans to back down

Amburi Roy, 37, and Aparna Saha, 36, two lesbian women from the Indian state of West Bengal, fell in love in 2007 while they were enrolled in an engineering college in their home state. 

With time, their love for one another grew stronger. The two started living together, but only as friends. They couldn’t talk openly about their sexual orientation out of concern for their safety and well-being. 

The couple told LGBTQ Nation that in the absence of a legal environment for them “to live a life of dignity and freedom” and no recognition of their relationship, they were forced to leave India in October 2021 and solemnize their marriage in Denmark in August 2022. They now work as software developers in Berlin, Germany.

Roy and Saha are among the eighteen couples who have petitioned the Indian Supreme Court seeking recognition of same-sex marriage in the South Asian nation.

The couple said LGBTQIA+ people in India are burdened with the stigma that prevents them from living as “our authentic selves and achieving our full potential.”

They said it was exhausting for them to constantly explain themselves and fight for their rights. “If LGBTQIA+ people had the same rights as heterosexual people in India, we wouldn’t have had to come to Europe to fulfill our dream of getting married,” they said, adding that India is still their country, and as citizens, they deserve equal rights. 

“The question implies that we should simply leave and go elsewhere to live our true selves, and should accept the status quo without trying to change it. As LGBTQIA+ individuals, we will live in India, our country, with full rights and protections.”

India’s Supreme Court recently began hearing arguments in the case, during which the lawyers for the petitioners said marriage was a union of two people – not just a man and woman. They argued that laws should be changed to reflect that concepts of marriage have changed over time. 

Chief Justice of India Dhananjaya Yeshwant Chandrachud, who heads the five-judge constitution bench hearing the case, termed the matter of “seminal importance”. 

In its opposition to the pleas by LGBTQ+ couples and activists, the government of Narendra Modi said that granting legal recognition to same-sex marriages would cause “complete havoc to the delicate balance of personal laws and accepted societal values as the concept of an Indian family involves a biological man and woman.”

Tushar Mehta, the Solicitor General of India who is representing the government in the case, initially questioned the court’s right to hear the matter and said that it was only the country’s parliament that could decide on the issue.

The long journey toward equality

According to the 2011 population census, there are at least 4.8 million queer people living in India. 

Over the years, the nation has made strides in advancing LGBTQ+ rights. In 2020, a PEW survey found a 22 percent increase in acceptance of homosexuality in the country, from 15 percent in 2014 to 37 percent in 2019, 

Still, many LGBTQ+ Indians find it difficult to come out and find acceptance in their traditional families.

In a 2018 landmark decision, India’s Supreme Court decriminalized homosexuality. The verdict was seen as a historic moment by the country’s LGBTQ+ community and gave hope to many that times in India were changing. 

“The 377 verdict was the initial step towards this journey, and we must continue to strive towards an impartial and fair society that upholds the rights of every individual,” said Roy and Saha.

There are currently 34 countries where same-sex marriage is legal, and a favorable decision could make India the 35th. At present, Taiwan is the only country in Asia where same-sex marriage is legal.

The waiting game

Roy and Saha are anxiously following the hearing and awaiting the verdict. 

“Our strong desire to become parents is the primary motivation behind our legal battle,” the couple said, adding, “We hope the Supreme Court of India will rule in our favor, allowing us to start the necessary adoption procedures.”

The couple has wanted to be parents for a long time, and they hope to adopt a child. 

After their marriage last year, they say they have approached several social workers and NGOs but all the avenues they explored led to dead ends.

“We found out that we could adopt as single parents but not together. This hinders our dream of becoming parents and raising a child with all the love our hearts can hold.”  

“The lack of legal recognition for our union poses challenges (like share insurance, medical emergencies, or financial hardship) in accessing the benefits and support that heterosexual couples enjoy. It also affects our sense of security, including the ability to be recognized as next of kin.”

So much more than marriage

Last week, Mehta told the Supreme Court that a committee, headed by a cabinet secretary, will be formed to look into “genuine human concerns” of LGBTQ+ community.

Experts say that for many, a favorable verdict would also provide legal protection from violence. 

“These are people from very very ordinary and marginalized backgrounds. The violence that they are facing in their lives is coming from their natal family,” senior Supreme Court lawyer Vrinda Grover, who is one of the many lawyers representing petitioners in the case, told LGBTQ Nation

“For them, it’s not about (whether) society should consider something or the other but it’s about protection. Marriage will provide some of them legal protection.”

Citing an example of a transgender couple, Grover said that they have faced immense violence from their own family and they have had to run because of that. “Marriage will provide them a legal protection which goes to their right to life. It’s literally their survival depends on this kind of recognition.” 

Lawyer Mihir Samson, who is representing Roy and Saha and another couple in the case, agreed with Grover, citing a lesbian couple – Bhawna Singh, 23, and Kajal Chauhan, 28 – who are also petitioners in the case.

Singh and Chauhan met in the summer of 2018 at a wedding and eventually fell in love and started a relationship. But Singh was locked in her home and beaten up, her phone confiscated, when her family learned about her relationship. When she escaped from home, her family members threatened her partner, forcing the couple to approach the High Court in New Delhi, which granted them police protection in April 2019.

“At the age of 19, Bhawna left her home to escape forced marriage to a man, a threat which persists till today,” Samson told LGBTQ Nation. “As a couple, their vulnerability is exacerbated by the fact that their relationship has no recognition in law and they are forced to say they are just friends every time they move to a new house or a job.”

“Marriage for them would not only acknowledge their commitment to one another, but act as a protective shield against the threats and violence of their natal family. Only when they are free from the shadow of this violence will they be able to forge a joint life together in the way they want.”

Never stop fighting

It’s not just the right-wing government led by Narendra Modi that has opposed the recognition of same-sex marriage; religious organizations have also backed the government.

India’s Supreme Court said that granting legal recognition to same-sex marriages falls within the domain of the legislature but its objective in hearing the case was to ensure that means are devised to grant same-sex couples social and other benefits and legal rights without the label of marriage.

“I do not think the court is letting off the state yet. It is pointing out that there is a need for some action. So let’s wait and watch is what I would say,” Chayanika Shah, queer activist and a petitioner in the case, told LGBTQ Nation. Sha’s petition, in addition to the recognition of same-sex marriage, seeks recognition of chosen families and appointment of next of kin not related by blood or marriage. 

Shah says that she wasn’t surprised by the government’s stance on the issue. 

“The present government in India is harsh on all minorities so this stand of theirs is not too surprising. We continue to live our lives, support each other and push the state where we can as we always have.”

LGBTQ Nation