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Sonu and Nikesh got married in 2018. Shortly after, they learned the happy news – the Supreme Court decriminalized Section 377 of the Indian Penal Code. Their joy knew no bounds. They began to imagine their ideal life together. And it was for a while. They were soon asked numerous questions about their marital status. In every form and application, they were “forced” to state their marital status as “single” because the law does not recognize same-sex marriages.
Two years after they got married, they decided to call it quits and challenge the existing law. They moved the Kerala High Court in January 2020 seeking legal validity of same-sex marriages, the first petition filed in the country on the issue. .
In this interview with Rintu Mariam Biju, Senior Correspondent, LiveLaw, the couple reveals exclusive details about what prompted them to file the case before the Supreme Court, the struggles they had to face as a couple and much more.
What was your wedding at the time when Section 377 of the IPC was still in force?
N: In 2018, we got married at the Guruvayor Temple in a way that is quite personal to us. We exchanged rings and garlands. We failed to follow any of the usual practices in marriage. We wanted to start living together and before that we wanted to get married. At that time, it was not a favorable environment for two men or women to marry. As you pointed out, we got married before the decision decriminalizing section 377 was made. If we had done anything unusual, it would have become a huge problem. Maybe even a threat to our lives.
What prompted both of you to petition the Kerala High Court to seek recognition of homosexual marriages under the Special Marriage Act?
N: Two months after our marriage, the Supreme Court decriminalized Section 377. That was a big boost for us. But what the decision essentially does is legalize sexual relations between two people of the same sex. It does not delve into another aspect. Therefore, our marriage had no legal validity. I could not mention Sonu’s name as my partner in any of the government forms or applications. We were unable to obtain a marriage certificate due to the lack of legal recognition. We understand that homosexual couples do not enjoy any of the rights that heterosexual couples have. In our opinion, this is quite unfair. Because we are not really given the choice to marry and live with the person we want. We wanted a change. There are many others like us and we are also fighting for them.
While dealing with many habeas corpus petitions, the Supreme Court said that the right to choose one’s life partner is a fundamental right. In the current circumstances, do you think this also applies to homosexual couples?
N: Not really. The right to choose a life partner should also apply to homosexual couples. As far as we are concerned, we chose each other, but the legal system does not recognize our relationship.
P: When we take the example of a heterosexual couple who decided to marry against their family’s wishes, they are finally able to do so after the Court intervenes and their union is legally recognized. But for homosexual couples, even after we decide to elope and get married, we are still not afforded any of the rights normally available to others.
It has been approximately two and a half years since you approached the Kerala High Court. How has the trip been so far?
N: The trip was both positive and negative. The thing is, we are getting older too. Meanwhile, we haven’t been able to open a joint bank account, we haven’t been able to name each other as nominees for insurance plans, and inheritance issues are another issue. We recently applied for a loan and I had named Sonu as my co-applicant. The bank asked us for proof of our relationship. Other than certain photos taken on the wedding day, we don’t have anything else. Personally, this bothered me a lot. Honestly, we don’t have any rights. We can live together, yes, but that’s it. It actually makes our life together more difficult.
While filling a simple application form, we are forced to select the ‘single’ column. We can’t show ourselves as a couple. There is literally discrimination against same-sex couples in every aspect, frankly. People like us often feel isolated from society. We are used to asking ourselves – why are we on the sidelines? Eventually, we stopped actively participating in many functions because we were indirectly forced to. In fact, there are so many difficulties.
P: People who are against us always question us and our marriage ceremony. They say that our government and country do not accept our relationship. During all this time, our relationship, legally speaking, is questionable.
How did your families react when you both announced the decision to move court?
N: Our families were very supportive because they knew about our relationship by then. They wanted us to submit the petition. However, they 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. However, someone has to take the initiative to bring about change and fight for our rights.
Did you do any research before applying?
S: We kept up with developments in our countries. We felt that these changes should also happen here in India. Deciding to meet with our attorney. Manu Srinath and discussing the future course of events were well thought out and well researched decisions of ours.
Despite the decriminalization of Section 377, many people still remain incarcerated. A large number of people fear their families or society and refuse to come out as members of the LGBTQA++ community. So to help them overcome this challenge, we believe same-sex marriage should be legalized.
Last week, the apex court decided to transfer to itself petitions pending in high courts to recognize same-sex marriages. What do you think about that question?
N: We think this is a good move. After all, the Supreme Court is the highest court in our country. We have often been under the impression that even if the Supreme Court makes a decision, it can be appealed to the Supreme Court and overturned. Now that the SC will deliver its decision, there will be some finality on the matter.
Also, it is not economically viable for us to go to Delhi frequently for hearings. So online hearings and allowing petitioners to argue their case themselves are positive signs, we think.
In 2022, the Supreme Court said that the understanding of “traditional family” in both law and society should change to include domestic, unmarried partnerships or odd relationships within its scope. Did this court observation give you the courage to continue the legal battle?
P: Yes, we are aware of this decision. In fact, many people shared it with us and we also shared this news on social media platforms. To be fair, the Supreme Court has been instrumental in passing quite progressive orders and judgments. This also helps to promote a change in people’s mindset. Court orders protecting our rights actually give us not a ray, but a ray of hope.
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