The Kerala high court asked the Centre and state government on Monday to respond to a petition demanding recognition of same-sex marriages on the grounds that it amounted to discrimination and a violation of fundamental rights guaranteed under the Constitution.
If the writ petition is successful, it would the first time in India that a same-sex marriage is officially recognised. The next date of hearing in the court of justice Anu Sivaraman is in two weeks time.
After the Supreme Court read down Section 377 of the Indian Penal Code in September 2018, same-sex relationships are legal but civil rights such as marriage, inheritance or adoption, are not guaranteed to the Lesbian, Gay, Bisexual and Transgender (LGBT) community.
The writ petition argued that some provisions of the 1954 Special Marriage Act barred the July 2018 marriage between 35-year-old Nikesh Pushkaran and 31-year-old Sonu MS from being officially recognised, and asked the court to strike them down.
The petition argued that lack of recognition of the marriage violated their fundamental rights to equality, equal protection before the law, life and liberty and non-discrimination.
“The petitioners suffered public humiliation after they made a disclosure of their love for each other. But greater is the insult and indignity the petitioners have suffered at the hands of law, which refuses to recognise the petitioners’ union, causing immense pain and agony,” read the petition.
Nikesh, a businessman and Sonu, an IT professional, both residents of Kochi, met in May 2018 and fell in love. Their relationship hit the headlines later that year after a social media post by Nikesh declaring their love went viral in Kerala. On July 5, 2018 they got “married” in a secretive ceremony outside the Guruvayoor temple in Kerala.
The same month, they tried to register their marriage under the Special Marriage Act – under which people of different faiths, and Indians living abroad can marry – but were rejected. In the absence of an official seal on their union, the couple faced problems opening a joint bank account, in filling government papers or in taking out an insurance policy.
“Everywhere we went, people laughed at us when we said we are married. They called us friends, and friends cannot open a bank account together. It was humiliating and discriminating,” said Nikesh, the petitioner. “By our petition, we hope no gay couple ever has to go through this.”
Manu Srinath, their lawyer, explained that while the Special Marriage Act doesn’t outright bar same-sex marriages, but provisions and forms under the act segregate by gender and explicitly mention “bride” and “bridegroom”, and “man” and “woman” in deciding age eligibility. “The application for marriage also expects that a man and woman will marry,” he added.
In its landmark Navtej Johar judgment in 2018, the top court decriminalised homosexuality but didn’t get into civil rights issues. In April 2019, the SC dismissed a petition seeking civil rights such as marriage, adoption and surrogacy. But the same month, the Madras high court recognised a marriage between a man and a transwoman.
Same-sex marriages are legal in 28 countries, including the United States and United Kingdom.