NIKESH and Sonu, a married gay couple from Thrissur, have moved the Kerala High Court challenging the provisions of Special Marriage Act, 1954 [Act of 1954] to get the permission to register their marriage.
Justice Anu Sivaraman of the Kerala High Court has agreed to examine their plea, and thus she issued notice to both the Central Government and the State Government.
The plea has stirred the debate around marriage equality for homosexual couples in India.
Before filing the petition in the High Court, the couple had approached the District Administration to register their marriage under the 1954 Act. However, the officer refused to register their marriage stating that the law did not allow it. Aggrieved with the local administration, the couple approached the High Court.
In their plea, they have argued that non-recognition of same-sex marriage violates the principles of equality, individual dignity and personal autonomy, which is enshrined under Part III of the Constitution of India.
They say “though the text of the Act does not exclude homosexual unions from its ambit expressly, Section 4 and Schedules 2-4 to the Act carry a heterosexual undertone in its language as it shows marriage as an affair between a male and a female or between bride and bridegroom”.
The petitioners have relied upon the judgements of the Supreme Court in the National Legal Services Authority (NALSA) v. Union of India & Ors (2014) where the court recognised one’s right to self-determination of sexual identity, and Navtej Singh Johar v. Union of India (2018) where the court while decriminalizing the Section 377 of the Indian Penal Code which prohibited homosexual acts held that members of the homosexual community were entitled to the full protection of all the civil liberties available to others.
The petitioners say “the decisions of the apex court would be “meaningless and incomplete unless the sexual minorities are afforded equal access to the institution of marriage and by enabling them to profess love in the way they deem fit”.
“… right to sexual identity will be incomplete and non-workable unless substantial rights are recognised as a consequence of the identification. Identification must be supplemented with dignity and dignity cannot be attributed unless a person is given the right to choose his own way of life which includes a selection of a partner to live with”, the petition reads.
Where are same-sex marriages allowed?
Around the world, many governments have granted legal recognition to same-sex marriage. At present, 30 countries and territories have enacted national legislation allowing homosexual people to marry.
Northern Ireland, Ecuador, Taiwan and Austria recognized same-sex marriage in 2019; Australia, Malta and Germany in 2017; Colombia in 2016; United States of America, Greenland, Ireland and Finland in 2015; Luxembourg and Scotland in 2014; England and Wales, Brazil, France, New Zealand and Uruguay in 2013; Denmark in 2012; Argentina, Portugal and Iceland in 2010; Sweden in 2009; Norway in 2008, South Africa in 2006; Spain and Canada in 2005; Belgium in 2003 and The Netherlands in 2000.
In 2015, while the Mexican Supreme Court, did not technically legalize same-sex marriage in the entire nation, however, it ruled that same-sex marriages performed in Mexico City are valid.
Why marriage equality is important?
Public discussion issues related to sex and sexual behaviour or orientation in India is a taboo. In the given social constraints, same-sex marriage in India is among one of the most divisive issues.
Though section 377 has been decriminalised, there is no law in India which legally recognises a marriage between a couple of same-sex. Laws in India are yet to recognise the same set of rights and responsibilities for married homosexual couples that they do for heterosexual married couples.
In India, two consenting adults of any sexuality or sexual orientation can have a ‘social marriage; but there are no legal safeguards of their rights. Homosexual couples in India do not have any legal rights such as registration of marriage, inheritance, succession, and adoption, maintenance of the spouse and children, and guardianship among others.
Future of equal rights
After the decriminalisation of homosexuality by the apex court, the homosexual community members are coming out for equal rights and status.
Right to choose a partner is a fundamental right as recognised by the Supreme Court in Shakti Vahini v. Union of India and others (2018). There is, therefore, no reason for not extending this right to marry to the homosexual couples – apart from blind prejudice and lack of understanding of the homosexual community.
There is also a failure on the part of the government that it has not brought amendments to the existing laws related to marriage, adoption, inheritance etc to give equal rights and status to LGBTQ community people.