Sonu and Nikesh got wedded in 2018. Shortly after, they heard the happy news - the Supreme Court had decriminalized Section 377 of the Indian Penal Code. Their joy knew no bounds. They began picturing the perfect life together. And it was, for a while. Soon, they were posed with a plethora of questions about their marital status. In every form and application, they were 'forced' to give their marital status as 'single' as the law doesn't recognize same-sex marriages.
Two years after tying the knot, they decided to put an end to this and challenge the existing law. They moved the Kerala High Court in January 2020 seeking legal validity of same-sex marriages -the first ever petition filed in the country on this issue. .
In this interview with Rintu Mariam Biju, Senior Correspondent, LiveLaw, the couple reveals exclusive details on what prompted them to file the case before the High Court, the difficulties that they've had to face as a couple, and a lot more.
What was your wedding like, at a time when Section 377 of the IPC was still in force?
N: In 2018, we got married in Guruvayoor temple, in a way that's quite personal to us. We exchanged rings and garlands. We weren't able to follow any of the practices that normally take place in a marriage. We wanted to start living together and before that, we wanted to marry each other. At that time, it wasn't a conducive environment for two men or women to marry. Like you pointed out, we got married before the judgment decriminalizing section 377 was delivered. Had we done anything out of the ordinary, it would have become a huge problem. Perhaps, even a threat to our lives.
What prompted both of you to file a petition before the Kerala High Court seeking recognition of homosexual marriages under the Special Marriage Act?
N: Two months after our marriage, Supreme Court decriminalized Section 377. That was quite an encouragement for us. But what the judgment essentially does is legalize sexual relations between two people of the same gender. It does not delve into any other aspect. Our marriage, therefore, did not have any legal validity. I couldn't give Sonu's name as my partner in any of the government forms or applications. We were unable to get a marriage certificate due to the lack of legal recognition. We realized that homosexual couples do not enjoy any of the rights that heterosexual couples have. This, we think, is quite unfair. Because we aren't really given the choice to marry and live with the person we want to. We wanted a bring about a change. There are many others like us, and we are fighting for them as well.
While dealing with many habeas corpus petitions, the Supreme Court has said that the right to choose one's life partner is a fundamental right. Under the current circumstances, do you think that is true for homosexual couples as well?
N: Not really. The right to choose one's life partner should be made applicable to homosexual couples also. As far as we are concerned, we chose each other but the legal system does not acknowledge our relationship.
S: When we take the example of a heterosexual couple who’ve decided to marry defying their families' wishes, they are finally able to do so after the Court intervenes and their unity is given legal recognition. But for homosexual couples, even after we decide to elope and marry, we are still not given any rights that are normally available to others.
It’s roughly been about two and a half years since you approached the Kerala High Court. How has the journey been so far?
N: The journey has been one with both positives and negatives. The thing is, we are also getting old. In between, we were unable to start a joint bank account, we weren't able to give each other's names as nominees for insurance plans, and problems relating to inheritance is another issue. Recently, we applied for a loan and I had given Sonu's name as my co-applicant. The Bank asked us for proof of our relationship. Except for certain pictures which were taken on the day of marriage, we don't have anything else. This personally troubled me a lot. In all honesty, we have no rights. We can live together, yes, but that's it. It's actually making our lives together more difficult.
While filling out a simple application form, we are forced to choose the 'single' column. We can't show ourselves as a couple. There's literally discrimination against same-sex couples in every aspect, honestly. People like us often feel that we are secluded from society. We used to ask ourselves - why are we side-lined? Eventually, we stopped taking an active part in many functions because indirectly, we were forced to. There are so many difficulties actually.
S: People who are against us always question us and our marriage ceremony. They say that the government and our country do not accept our relationship. All of those times, our relationship, legally speaking is a question mark.
How did your families react when both of you announced the decision to move the Court?
N: Our families were very supportive because they knew of our relationship by then. They wanted us to file the petition. They, however, had one concern- whether there would be any threats/difficulties to our lives. They had communicated this to us as well. But we were firm in our decision to challenge the existing legal position. After all, somebody has to take an initiative to usher a change and to fight for our rights.
Did you undertake any research prior to filing the plea?
S: We were up to date with developments in other countries. We felt that these changes should come about, here in India as well. Deciding to meet our Adv. Manu Srinath and discussing the future course of events were all well-thought-out and well-researched decisions of ours.
Despite the decriminalization of section 377, many people still remain to be closeted. A big number of people fear their families or society and refuse to come out as a member of the LGBTQA++ community. So, to help them overcome this challenge, same-sex marriages must be legalized in our opinion.
Last week, the top Court decided to transfer to itself Petitions Pending In High Courts For Recognition Of Same-Sex Marriage. What are your thoughts on this?
N: We think that it's a good move. After all, Supreme Court is the apex Court in our country. We were often under the impression that even if the High Court delivers a judgment, it could go to the Supreme Court in appeal and it could be reversed. Now, since the SC will deliver its judgment, there will be some finality in the matter.
Also, it is not economically feasible for us to go to Delhi frequently for hearings. So online hearings and allowing the petitioners to argue their case on their own are all positive signs, according to us.
In 2022, Supreme Court said the understanding of a “traditional family” in both law and society needs to change and bring domestic, unmarried partnerships or queer relationships under its ambit. Did this observation of the Court give you the courage to continue the legal fight?
S: Yes, we are aware of this judgment. In fact, many people shared it with us and we too shared that news on social media platforms. Truth be told, the Supreme Court has been instrumental in coming out with quite progressive orders and judgments. This helps in promoting a change in the people’s mindset as well. Court orders upholding our rights actually gives us a ray of hope.