Why same-sex couples are pushing for legal sanction of marriage

As India gears up to tackle what the Supreme Court calls the ‘seminal’ issue, queer couples talk about the lack of legal and social security when the state doesn’t recognise their relationship 

Updated - March 22, 2023 10:32 am IST

Published - March 22, 2023 01:02 am IST - New Delhi

Image used for representational purpose.

Image used for representational purpose. | Photo Credit: Reuters

Last week, Deepak Sharma was rushed to a hospital in Bengaluru for an emergency surgery. There, writhing in pain, he signed his own documents, as his partner of 13 years, Ankur Bhatnagar, stood by helplessly. Hospital authorities insisted that only “family” could sign the documents and not “friends”, Mr. Bhatnagar said. When the animation professional told them he was Mr. Sharma’s partner, the reply was a non-affirmative smile. “Our partners do not exist for the system,” Mr. Sharma said.

India decriminalised homosexuality in 2018, while in 2017 the Supreme Court had recognised sexual orientation as protected under right to privacy. However, because financial and social security benefits are only accorded to those who have the legal sanction of a marriage, same-sex couples have trouble accessing some basic relationship rights. Whether it is buying a house together, securing medical insurance, having a joint bank account, ensuring inheritance, or even on visa applications, there is no recognition of same-sex partners.     

“Ever since consensual sex between homosexuals was decriminalised, the legitimate expectation was that marriage rights to same-sex couples would follow. Why should same-sex couples be denied this fundamental right? The exclusion of same-sex couples from this right is an affront to our constitutional values.... Parliament has not acted, so it is good that community members have gone to court,” senior Supreme Court lawyer and legal activist Anand Grover said.   

Social worker Koel Ghosh, who lives with her partner Ankana Dey in her ancestral house in Kolkata, is petrified that if something happens to her, her family may throw Ms. Dey out from the house as she has no legal right over the property despite having spent an equal amount of money on its upkeep since they started living together four years ago. The couple, who celebrated their fourth anniversary this week, are one of the petitioners in the Supreme Court in the same-sex marriage case, and want to take their life forward as a couple recognised by the state.      

Mumbai-based IT professional Inder Vhatwar and his partner of 11 years, Ashish Srivastava, bought a house together just before the COVID-19 pandemic. They had to rope in Mr. Vhatwar’s brother as a co-applicant for the loan, though in actual terms it was Mr. Srivastava who was paying.  “So, though in reality, it is Ashish who has paid for half the property, if something happens to me, then it will be my brother who will get to inherit the house. How fair is that?” Mr. Vhatwar asked.     

Accessing each other’s Provident Fund, medical insurance or any kind of joint social security options are out of bounds for these couples without the ‘stamp’ of marriage.    

Things get more complicated when one partner is financially dependent on the other. Bengaluru-based Sindhur Kashyap’s partner Spoorthy G., is eight years younger, was a student and 19 years old when they started living together. Since her parents objected to the relationship, she had no security net.  “In the initial days, she was totally dependent on me financially. I used to be constantly worried that she would be out on the streets if something happened to me,” Ms. Kashyap said.    

It is the dependence on the natal or birth families for accessing resources which puts a lot of LGBTQ people at risk of physical violence. Legal recognition for same-sex unions would mean that a couple can access police and legal protection. 

Regarding children   

Adoption, surrogacy, or even IVF for lesbian couples is almost impossible legally, with one person having to bear the full legal responsibility. There is also a question mark on the fate of children adopted in case the couple decides to part ways after some years, as in the absence of joint custody, only one would be left responsible for the upbringing of the child.  

Mr. Sharma and Mr. Bhatnagar, who have explored all avenues for having a child over the last decade, are waiting with high expectations for the five judge bench of the Supreme Court to start hearing the petitions on April 18.    

If there is a positive decision, then India will be the second country in Asia after Taiwan to recognise same-sex marriages. Currently, there are 32 countries in the world that allow same-sex couples to marry. “The moment we get the legal go-ahead, we will tie the knot,” Mr. Bhatnagar said.  

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