Like all love birds, Nived and Rahim had long been dreaming about their wedding day. They had meticulously planned the big event, including the dress they would wear. The couple, dressed in deep blue coats and white and cream pants, exchanged marriage vows in the presence of a few friends and relatives two weeks ago. They embraced and exchanged kisses. Then the party began. Nived and Rahim would probably be the first gay couple from the State to get married after the Constitution Bench of the Supreme Court decriminalised Section 377 of the Indian Penal Code in September 2018.
The section, introduced in the British era, had made sexual activities against the ‘order of nature’ illegal. The section, dealing with unnatural offences, prescribed a punishment of 10 years and fine for those who “voluntarily has carnal intercourse against the order of natur with any man, woman or animal.” In its epoch-making judgement, a five-member Bench of the apex court decriminalised consensual sex between adults of same sex.
The court held that the section would not apply to consensual same-sex acts between homosexuals, lesbians, and other sexual minorities. However, bestiality and sexual acts without consent would continue as offences.
Getting married in the post-decriminalisation period, Nived and Rahim did not have to keep their marriage a secret. They shared the pictures of their happiest moments in social media. “It was a simple event, attended by a few of our close friends,” says Nived. The couple, who had also shared their New Year party videos online, will be travelling to Kochi next week where they will throw a dinner party for their friends.
A discreet wedding
Getting married was not that easy for Nikesh Usha Pushkaran and M.S. Sonu, who tied the knot on July 5, 2018. Like their love affair, which had raised several eyebrows, they had to keep the event a discreet one and took care not to release the news and pictures of their marriage at Guruvayur Temple.
Better days ahead: Nikesh Usha Pushkaran and M.S. Sonu made their marriage public only after the Supreme Court judgment
“It was nearly two months after our marriage that the Supreme Court decriminalised Section 377. We made our marriage public after the judgement. First, we released the pictures of our ring-exchange and later, the images of garlanding,” says Nikesh.
“Initially, there was widespread criticism. People blamed our parents. But things changed. Society began accepting us as a couple,” says Nikesh.
“We are happily married, like any other couple. We decided to live as we are, without camouflaging our identity. Many people with same sex orientation are forced to marry people of the opposite sex. They are trapped in unhappy marriages, making life a hell for themselves and their spouses. Every day, we get phone calls from gay people who are facing unimaginable societal and familial pressure to get married to a woman,” he says.
No lesbian marriages
No lesbian marriages have taken place in Kerala so far. There may be lesbians who would want to live with the woman they love. But it is not easy for a woman in Kerala to open up about her sexual preference for a woman, he says. According to Jijo Kuriakose, the founder of Queerla, a community-based organisation for Malayali LGBTIQ people, several aspects of the Supreme Court judgment are yet to be discussed.
The LGBTIQ community members are yet to get visibility in society and workplaces. Each day, the organisation gets at least four to five calls from people regarding these issues. Many callers share their concern over the familial pressure to get married, says Mr. Kuriakose.
“We as a society, while taking about the mental health issues, should also talk about gender issues and the sexual orientation of people,” he says.
Legal reforms
Everything may be fair in love, but not in law. Though Section 377 has been decriminalised, Indian laws are yet to recognise same-sex marriages.
All Indian laws, including the personal laws of religions, conceive marriage as something taking place between a man and a woman, says a woman judicial officer. Since the laws do not recognise same-sex marriages, the legal protection and remedies prescribed for couples will not be available for them, she said. Such marriages do not have the approval of law and hence the partners cannot seek legal remedies in case of failed relationships, she adds.
The law is unfair to same-sex couples, says Nikesh, pointing out the difficulties in entering the name of their life partners as their legal successors or survivors while opening bank accounts, taking loans, and subscribing to insurance schemes.
Expanding the family is another issue faced by same-sex couples.
“In another two years,” says Nived, “we will have a baby. A woman friend has agreed to bear a baby for us through In Vitro Fertilization (IVF) method. We have to opt for IVF in India since surrogacy is banned here,” he says. Who will father the child? “Either me or Rahim,” says Nived in a firm voice.
Adoption attempts
The efforts of Nikesh and Sonu to adopt a child have not succeeded so far. “We wanted to adopt a baby. But it has not worked out so far. The legalisation of same-sex marriage will open the legal route for us to adopt a baby,” Nikesh says.
According to a senior district judge, there is no legal bar for childless couple and single parents to adopt babies. However, in real life situations, preference is usually given to heterosexual couples over same-sex ones, he says.
Also read: Transgenders raise the adoption question
The present legal status of same-sex couples is that they can live under one roof, engage in sexual activities without the fear of being harassed by moral policing squads, or being afraid of being caught for an illegal act.
No hotelier can deny them rooms and no policeman can book cases against them, he says.
Divorce and rights
However, there are no laws governing their divorce, restoration of conjugal rights and maintenance since their marriages are not good in law, he says. When the going gets wrong in such marriages, says the woman judicial officer, the provisions of gender-neutral laws like the Indian Penal Code and civil laws will come into play. A whole new set of legislations are required for legalising such marriages, she adds.
