Bengaluru: “Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when the seventh step is taken.”
The government underlined and highlighted in bold the words ‘bridegroom and bride’ in its 13 March 2023 response to the Supreme Court countering 15 petitions that are demanding a review of Indian marriage laws, and emphasised that it was against same sex marriage. Petitioners want the court to interpret marriage laws more broadly to include same sex couples or to declare the laws unconstitutional on the grounds that they deny same sex couples the right to marry.
When Sameer Samudra was in the midst of the saptapadi or seven-steps Hindu ceremony sanctifying marriage with Amit Gokhale, his partner of six years, on 18 September 2010—by which time 20 countries around the world had legalised same sex marriage—he suddenly felt a jolt of apprehension.
The country of his birth (India) and the country where he resided (US) were not among these.
“Somewhere we’ve all been brainwashed to believe that this is not right and I hoped my decision wouldn’t impact my family. We were doing something ‘forbidden’ with something sacred,” Samudra thought, before dismissing the fleeting worry.
“This makes me feel happy,” thought Samudra, who met Gokhale online. They fell in love over Marathi poetry and Mexican food. “I’m not committing a crime, I’m not hurting anyone.”
It took some effort to find a Hindu priest who would agree to officiate their traditional Maharashtrian wedding in the state of Indiana, US. There were around 60 invitees; the celebrations included mehendi and sangeet events. The partners tweaked the rituals to make them gender neutral.
Instead of the mangalsutra that the groom gives the bride, the men exchanged gold chains. The kanyadaan (bride-giving) ceremony became a vardaan (groom-giving) ceremony and was conducted with both partners.
In the saptapadi ceremony they changed phrases such as ‘bear children’ to ‘bear the fruits of labour and happiness’. The images of two men doing the seven pheras went viral and they were outed to the larger diasporic community.
Four years later, when the US state of Pennsylvania legalised same sex marriage in 2014, calling a 1996 statutory ban “unconstitutional”, Samudra and Gokhale travelled there and got married again.
This time they were married at City Hall in Pittsburgh along with many couples. They were the only Indians. The festivities took place alongside a Pride March attended by thousands.
“We walked in the parade afterwards,” said Samudra. “I realised for the first time that this is what it means to be legally married.”
Despite being legally married, Samudra’s is among the at least 15 petitions that have asked for the right to same sex marriage in India. That’s because after the worst of the Covid pandemic, when Samudra and Gokhale tried to register their marriage in Pune and with the Indian embassy in Washington DC, both places responded with “disrespect”, he said.
“The Pune registrar started shouting…did you see what is written in this form? VADHU AND VAR (bride and groom)… I thought he would resort to violence,” said Samudra who added that he wanted an official reply, not an opinion.
At the Indian embassy, the official in charge was no better. “You’re just unnecessarily creating trouble for us and wasting our time,” the official told them rudely, refusing even to make eye contact. Samudra said the homophobia was “all out there” in both instances.
The Conjugal State
On 13 March, a Supreme Court bench of Chief Justice of India D Y Chandrachud (who was also on the bench that struck down sec 377 in Navtej Singh Johar vs Union of India, 2018 and decriminalised consensual sexual relations between same sex adults) and Justices P S Narasimha and J B Pardiwala said that the issue of legalising same sex marriage in India was of “seminal importance”.
The court transferred the case to a constitution bench of five judges set to meet on 18 April, and added that the proceedings would be live-streamed.
Nine weeks before, on 6 January, the SC had transferred to itself petitions seeking recognition of same-sex marriages that were pending in high courts across the country.
The petitioners are seeking recognition under the Hindu Marriage Act,1955 (HMA), the Special Marriage Act, 1954 (SMA) and the Foreign Marriage Act 1969. Some of the petitioners, for example, have argued that the HMA validates marriages between “any two Hindus” and that there is nothing in the Act that explicitly mandates marriage can only take place between a man and a woman.
In 2021, the government of Prime Minister Narendra Modi told the Delhi High Court that despite the decriminalisation of sec 377, petitioners could not claim a fundamental right to same-sex marriage. It was responding to one of the petitions filed in 2020 by writer Abhijit Iyer-Mitra. The government quoted this paragraph from the Navtej Singh Johar judgement to make its point:
“There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical, mental, sexual or emotional. The LGBT community is seeking realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.”
In its 2021 response to the Delhi High Court, and then again in its submission to the Supreme Court on 13 March, the government argued in its affidavits that any ‘interference’ in the personal laws of the country would cause ‘complete havoc’.
The government said a slew of laws such as those that governed divorce, alimony, maintenance, dowry, separation and conjugal rights would have to be changed.
The government told the Delhi High Court that marriage by definition was between a biological man and a biological woman and depends upon “age-old customs, rituals, practices, cultural ethos and societal values”. It reiterated this point in its March affidavit, additionally describing marriage as a “sacrament, a holy union and a sanskar.”
Petitioners also quoted from the Navtej Singh Johar judgement.
One petition, filed by two married gay men residing abroad and in a committed relationship since 2012—one an Indian citizen and the other an Overseas Citizen of India (OCI)—said that in 2018 the SC had observed that “history owes an apology” to the LGBTQ community for the decades of exclusion and discrimination meted out by the Indian society.
“Non-recognition of same-sex marriages,” they said, “is a wanton act of discrimination that strikes at the root of dignity and self-fulfilment of LGBTQ couples.”
They added that they had struggled to meet their families during the pandemic. Despite their legal overseas wedding, the OCI partner was not recognised as a spouse when India relaxed Covid-19 restrictions for OCI cardholders allowing entry to those whose spouses or parents were Indian.
The Perks of Marriage
Petitioners have argued that not being legally married deprives them of a variety of privileges. They emphasise that the denial of the right to marry violates Articles 14, 15, 19, and 21 of the Indian constitution and a clutch of international covenants.
Kavita Arora and Ankita Khanna, a Delhi-based couple who celebrated their 10th anniversary of togetherness in October 2022, for instance, listed a series of simple things that married couples take for granted that they had no access to.
They said that in addition to social and cultural sanctity provided by marriage, legally wedded people had access to rights, privileges and benefits that were not available to them. “Without marriage, the petitioners are strangers in law,” they wrote in their petition.
How does a same-sex couple open a joint bank account? Bank officials invariably ask for documents that an unmarried couple cannot provide. Family medical insurance and other marital privileges related to succession, taxation, pension, health are not accessible to same-sex couples who chose to spend their lives together.
Nominating each other for mutual funds, Public Provident Fund, pension schemes or any other financial instrument is often out of bounds. Address verification of a passport or co-owning assets requires a Herculean effort.
“Even an opposite-sex live-in couple who hold themselves out to be like a married couple are assumed to be in a common law marriage and have certain rights of being in a live-in relationship, even if unmarried,” the two women told the court. “The Protection of Women from Domestic Violence Act protects even unmarried couples who live in a shared household.”
Arora and Khanna said that excluding same-sex marriage from the SMA, a legislation governing civil marriage and one that is outside personal law, violates constitutional guarantees of dignity and liberty.
Equally important, why should a couple that fell in love a decade ago, who live together, are committed to each other and want to grow old together, as Arora and Khanna do, be deprived of access to the institution of marriage?
In their words, they share the same values and world view and have built a common workspace as well as a shared household. “The Petitioners love and value each other just like all the opposite sex couples they know,” they said.
Those who believe in the institution of marriage would argue this is the crux of the issue.
Arora and Khanna also pointed out that a same sex couple cannot take medical decisions for each other such as giving consent for a medical procedure or taking end-of-life decisions. They said they had to inform their respective families that they had written their wills to ensure that they inherit each other’s assets when they die.
“Same-sex couples always fear that their wills may be challenged in probate proceedings if their legal heirs do not respect and acknowledge the relationships,” they added.
The Case For ‘Chosen’ Families
But what if you don’t want your biological family or your intimate partner to make these key life decisions? Going deeper than access to equal marital rights is the writ filed by Rituparna Borah and other leading queer feminist activists Chayanika Shah, Minakshi Sanyal and Maya Sharma.
At its core this petition highlights the violence faced by the LBTI (lesbian, bisexual, trans and intersex) community from the very families they are born into including forced marriage, house arrest, the halting of education or work when a family discovers their true identity.
The petition asks a pertinent and philosophical question: Why does the law define ‘family’ so narrowly?
The legal definition of family as members related “only by ‘marriage, birth or adoption’ is not representative of the lived experiences of unmarried LGBTI individuals and the manner in which chosen families are organised” especially when the ‘family’ expects its members to follow a heteronormative lifestyle and opposes any deviation from this rigid line, often using violent means.
“The ‘Family’ as a unit has traditionally been believed to be a source and site of love, care, protection and rearing, but experience demonstrates that it can also be a site of breach of basic human rights, and a source of discrimination, hate and violence,” this petition argued, adding that laws against domestic violence, for example, protected women from violent family members.
“It’s not just about the right to marry, it’s about the right to form a family too. Important decisions about life and living should not be given to the biological family which is often violent in the experience of the LBTI community,” Borah, who is part of the National Network of LBI Women and Trans Persons and co-founder of Nazariya, a queer feminist resource group, told Article 14.
Borah said that after her father, who had been supportive of her life choices, passed away recently, she had “no existing allies in her natal family”.
As someone who suffers from fibromyalgia and chronic fatigue, conditions which might require people close to her to take medical decisions on her behalf, Borah said she did not want to depend on family who did not “support, respect or understand her and her lifestyle decisions”.
The petition emphasised bonds forged through care, love, understanding and respect rather than by birth.
“Such atypical families or chosen families, be it through queer romantic relationships or intimate friendships, provide real and greater support, comfort and care to a majority of LGBTI persons than their natal families,” the petitioners wrote, adding that the right to form such families fit perfectly into the mandate of Article 21.
This petition speaks for all familial relationships that go beyond the traditional man-woman-child structure.
“A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts” and hence, the petitioners said, deserving of equal protection under the law.
In addition to revamping problematic clauses in the SMA, petitioners asked for the right to a ‘chosen’ family. They asked that the court allow an unmarried person to “nominate ‘any person(s)’ to act as their nominee or next of kin, irrespective of whether such person is a ‘guardian, close relative or family”. They also asked that all individuals, irrespective of sexual orientation and gender identity, have access to safe houses similar to Garima Greh available to transgender people.
‘I Thought We Would Marry This Year’
The day before the government submitted its affidavit to the Supreme Court, Samudra was hopeful that same sex marriage would soon be on its way to being legal in India.
“I told Amit that if this happens, we should do another wedding in India some time this year,” Samudra told Article 14.
As married gay men, Samudra and Gokhale are among the best placed in the LGBTQIA+ community, but they have faced their share of bigotry too. Like the time they moved back to India from 2017-2020. “It was like going back in time,” Samudra said about living in Pune.
When looking for apartment rentals, they decided to ignore advice to say that they were ‘business partners’ and opted for honesty, telling potential landlords they were a couple.
Landlords responses included “I’m sorry we have a lot of children in our apartment, we can’t rent to a gay couple”; “It’s a huge risk, so I’ll charge you 50% more”; and “How is this even possible?”
When they finally found a place and word got out, residents complained to the building society demanding that they amend the law to allow rentals only to ‘normal’ couples.
As someone who is out and openly married, Samudra gets a lot of queries from younger members of the community.
“Someone wrote on Instagram that he was 19, living in Pune and studying engineering. When he came out to his parents, they took him to the doctor who prescribed shock therapy. His parents told him that he will have lots of diseases if he continues with this life,” said Samudra. “He wanted to know if this was true.”
Samudra said he felt mentally exhausted from trying to educate people for the last 20 years.
“I’m upset, I’m sad, I’m frustrated and I’m angry,” he said about the government’s response which was a “punch in the stomach”.
“I want to channel my anger,” he added. “If we want to change things here, we will have to fight this battle.”
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(Priya Ramani is on the editorial board of Article 14.)