Will India legalize same-sex marriage? – DW – 12/06/2022

Four years after India’s Supreme Court struck down a colonial-era law that made homosexuality a criminal offence, it has now given the government a month to respond to petitions seeking recognition of same-sex marriage. sex.

Last week, the high court headed by Chief Justice DY Chandrachud heard public interest litigation brought by two LGBTQ couples who argued that the state’s refusal to recognize them as married violated their constitutional rights.

The first petition was filed by a couple who have been together for nearly a decade and held a commitment ceremony last year where their parents, family and friends blessed their relationship.

The second petition was filed by a couple who have been in a relationship for 17 years and are raising children together. However, the couple say their lack of marital status means they cannot have a legal relationship with their children.

Other petitions seeking recognition of same-sex marriage under India’s Special Marriage Act (SMA) of 1954 are pending in state high courts in Delhi and the southern state of Kerala.

“Forbidding us to marry violates the right to equality. We have told the court that the inability to marry has implications for personal freedom, adoption, and financial matters. Members of the LGBTQ community have the same human, fundamental, and constitutional rights as other citizens. one of the petitioners told DW anonymously, while his legal case is ongoing.

A rally for LGBTQ rights in Kolkata
India’s LGBTQ community has been constantly seeking more rights in recent years.Image: Subrata Goswami/DW

What is the path to legalization?

After the Supreme Court of India decriminalized homosexuality, many have raised the issue of taking the step towards legalizing same-sex marriage.

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The Special Marriage Law (SMA) is a law that was originally passed to legalize interreligious unions. Now, LGBTQ couples argue that their marriages should be recognized by the SMA.

In addition to not recognizing same-sex marriages, Indian law does not provide for civil unions. Gay and lesbian couples are also not allowed to have children born with the help of an Indian surrogate mother.

An LGBTQ person can apply to the Central Adoption Review Authority for adoption only as a single parent.

Without the legal right to marry, LGBTQ couples have still been participating in commitment ceremonies, which are not legally binding but express a couple’s lifelong commitment to each other. Couples often have large destination weddings and perform traditional Indian wedding rituals.

“We hope for the right to be like everyone else. No discrimination, no discernment, no judgment,” LGBTQ rights activist Mohnish Malhotra told DW.

Other rights demanded by the LGBTQ community include the right to own and inherit property, and to list their same-sex partners on hospital and insurance forms.

“I think decriminalization was the first step. There is still no positive legal inclusion for gays and lesbians in the Indian legal framework, and marriage has to be seen in that context,” said Senthi, who uses a name, of the LGBTQ literary organization Queer Chennai. Chronicles, she told DW.

Fighting for gay rights in India

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Resistance to LGBTQ marriage in India

Although awareness of the LGBTQ community has increased in India, there is still stigma and resistance to full acceptance. So far, 33 countries around the world have recognized same-sex marriage and civil unions.

The Bharatiya Janata Party (BJP) government in the northern state of Uttar Pradesh has described same-sex marriages as contrary to Indian culture and religion in statements on a petition filed by a same-sex couple in a high court. in Allahabad.

The government said same-sex marriages should be considered invalid under Indian law.

“We have no objection to two people living together, but we cannot allow judges to be the arbiters on the issue of same-sex marriage. There must be a broader social debate, and parliament should be involved in this matter.” said a senior official. The BJP government lawyer, who requested anonymity, told DW.

Edited by: Wesley Rahn