India’s Top Court Begins Hearing Same-Sex Marriage Case
The two women fought their families, survived beatings, put up with death threats and were forcibly separated before they could live together as a couple. Now, they are fighting for their right to get married in India.
“It will give us legal proof, and I can show it to my parents, who are still opposed to our relationship,” said Bhawna, who like her partner, Kajal, goes by one name.
On Tuesday, the couple, along with more than a dozen others, got their day in India’s Supreme Court, which began hearing arguments in a case to legalize same-sex marriage. In recent years, the court has held up individual freedoms, including striking down a ban on consensual gay sex, granting rights to India’s marginalized transgender community and declaring privacy as a constitutional right of all Indians.
It is unclear how long the court will take to reach a decision, but a ruling in favor of the petitioners would make India an outlier for gay rights in Asia, where most countries still outlaw same-sex marriage. India’s conservative Hindu-nationalist government is opposed to legalizing the unions, and in a court filing on Monday, it called same-sex marriage an “urban elitist concept far removed from the social ethos of the country.”
Prime Minister Narendra Modi’s administration has contended that granting legal recognition to relationships is “essentially a function of the legislature,” not of the judiciary. It has also argued that marriage is an “exclusively heterogeneous institution” and any interference to it “would cause complete havoc” in India’s deeply religious society.
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Some people in favor of marriage equality have rejected the notion that societal norms in India do not evolve.
“The problem is this notion of fragility, which is just entirely self-created,” said Menaka Guruswamy, a senior lawyer representing multiple petitioners in the case, including two lesbian couples and a trans woman. “Hindu society has enabled reform since independence,” she said, citing the changes to a series of laws in the 1950s that allowed Hindus, Sikhs, Jains and Buddhists to marry across religions and castes. Other laws allowed for divorce, the chance to adopt and equal rights for women to inherit property.
Now, Ms. Guruswamy said, same-sex couples require “a language” to present their relationships as equally authentic as those by their straight counterparts, in a society where young people grow up watching Bollywood films about “mismatched lovers” and “parental opposition.” Those stories, she said, should make it easier, not harder, for Indians to accept love in all its forms.
Almost five years ago, the Supreme Court ushered in a new era for L.G.B.T.Q. rights in India. The ban on gay sex, a vestige of the country’s colonial past, was “indefensible,” the court said in its unanimous order. In that groundbreaking case, the court ruled that “sexual autonomy of an individual” was at the core of “individual liberty,” and thus had no place in the country’s legal system.
Those actions fueled hopes that the court would act as a socially liberal counterweight to the conservative ethos of Mr. Modi’s ruling Bharatiya Janata Party, and its ideological parent, the Rashtriya Swayamsevak Sangh.
But many members of India’s lesbian, gay, bisexual and transgender community say they continue to lead marginalized lives.
Zainab Patel, a 43-year-old human resources executive in Mumbai, who suffered sexual abuse as a child and is one of the petitioners for marriage equality, said that “as a trans woman, I am also entitled to the same set of rights and privileges as you. Otherwise, I will become a second-class citizen in this country.”
Many Indians still struggle to come to terms with their sexual and gender identities at home and the workplace, making them vulnerable to extortion by criminal gangs and an overall environment of fear, said Amritananda Chakravorty, a lawyer who has fought for L.G.B.T.Q. rights in India for 15 years.
“A big part of why we are asking for marriage equality is, ‘If I get that one piece of paper from the court or the state, then that itself is like a protective shield for me, from family harassment,’” Ms. Chakravorty said. “It is this constant fear that because there is no security to this relationship, my family can come and separate us any day and we will have no legal recourse.”
Petitioners said they also hope that a ruling in their favor would lead to other rights, including insurance coverage for spouses, joint bank accounts and the chance to adopt.
Ms. Bhawna, one of the petitioners in the case, said that she and her partner, Kajal, 28, have only just begun to have some semblance of normality in their life as a couple. They live together and have stable jobs, but marriage, she said, would be a “stamp of approval.”
“Every girl dreams of getting married,” Ms. Bhawna, 22, said.
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