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India is about to decide the fate of gay marriage

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SUpriya Chakraborty proposed to Abhay Dange in April 2021 amid the COVID-19 pandemic in India. Chakraborty was recovering from a high fever after testing positive for the virus, and being with his partner of nearly 10 years made one thing abundantly clear: “Abhay was the one,” he tells TIME. So Chakraborty, 32, and Dange, 35, made an important and potentially life-threatening decision to marry in December 2021 in a big Indian ceremony outside Hyderabad.

The two men are now lead petitioners in a landmark case that will decide the fate of same-sex marriage in India. In April, the Indian Supreme Court began hearing a series of petitions from 18 LGBTQ+ couples, including three children together, seeking legal recognition of same-sex marriage. Oral arguments ended on Thursday with a decision expected in the coming months,

“We filed the petition because this issue affects our lives in a very tangible way,” says Dange. “We are the most important person in each other’s lives and yet, we cannot legally, loudly and proudly call each other ‘husband’ in this country.”

India has made significant progress in advancing LGBTQ+ rights in recent years, with the Supreme Court decriminalizing homosexuality in a landmark ruling in 2018. But homosexuality and gay marriage are still taboo subjects in the socially conservative country led by Prime Minister Narendra Modi, whose government has largely opposed the issue – arguing that the matter should be decided in parliament. .

A five-judge Supreme Court headed by Chief Justice DY Chandrachud will now debate the issue of same-sex marriage, which it said is a matter of “fundamental importance” for India. If the court rules in favor of the petitioners, India will become the first country in South Asia and the second country in Asia after Taiwan to legalize same-sex marriage.

Read more: Doctors in India tried to ‘cure’ him with conversion therapy. Now she’s fighting to get it banned

What is the rationale for same-sex marriage petitions?

The petitioners are primarily focused on whether the Special Marriage Act of 1954, which amended the Constitution of India to allow civil marriages between couples of different castes and religions, was extended to include LGBTQ+ persons May go.

The hearing of the petitions, which was directed to the Supreme Court on March 13 and began on April 14, argues for legal recognition of same-sex marriage and their right to adopt in a matter of equality.

“When you deprive me of the right to marry, you deprive me of citizenship. If you deny me citizenship, you are saying ‘you are no good, you are not equal to a citizen under the Preamble, so stay where you are’, Chakraborty and Dange’s lawyer Mukul Rohatgi on Tuesday argued in court. He said the issue is about fundamental rights and should not be left in the hands of Parliament.

Menaka Guruswamy and Arundhati Katju, LGBTQ+ lawyers also representing the petitioners echoed a similar argument. Guruswamy said, “With the Constitution in our hearts, we go back to our Court for full equality, full dignity and freedom deserved by our citizens.” Tweeted on Wednesday.

What are the current laws in India on LGBTQ+ issues?

India’s penal code, introduced under British rule in 1862, criminalized all homosexual acts as “against the order of nature”. This remained the case until the colonial-era law was struck down by the Supreme Court in 2018.

As a result of the landmark judgment of 2018, acceptance of homosexuality has increased in India. A 2021 Ipsos survey found that 58% of Indians believe that same-sex couples should be given some sort of legal recognition, and 66% believe that same-sex couples should be able to adopt children . another pew survey 2020 found 37% of people believe same-sex marriage should be accepted in the country, up from 15% in 2014.

But the Indian government, led by Modi’s Bharatiya Janata Party, has formally opposed the issue of same-sex marriage, even though many lawmakers take a different view. According to pink list indiaThe country’s first collection of politicians supporting LGBTQ+ rights, 115 of the 161 members of parliament who have publicly considered the same-sex marriage debate have expressed support, most of them belonging to the ruling BJP.

Nevertheless, the Government of India urged the Supreme Court to dismiss all arguments challenging the current legal framework, saying that limiting legal recognition to “marriages/unions/relationships being heterosexual in nature” There was a “legitimate state interest”. for legal filing saw by Reuters.

The ministry argued, “living together as partners and having sexual relations by same-sex persons … is not comparable with the concept of the Indian family unit of a husband, a wife and children.”

on Sunday, Reuters informed of that the government submitted another 102-page document to the court, arguing that the petitions “reflect only urban elitist views” and that recognition of same-sex marriage would mean a “virtual judicial rewrite of an entire branch of law” .

what happens next?

“It’s hard to say when [the court will make a ruling] Because the final decision will be a written decision, which can take time,” says Kanav Sehgal of the Vidhi Center for Legal Policy, an independent legal think tank in India. “And similar to the US, we see judges inclined to write separate or concurring opinions. Can.”

Sehgal says if the Supreme Court legalizes same-sex marriage, LGBTQ+ individuals could face discrimination in public services, hiring or adoption. “There is no national anti-discrimination law in India that protects sexual orientation,” he says. Sehgal also warned that some Indian states may deny marriage licenses to couples who wish to marry.

If the court rules in favor of the petitioners, Chakraborty and Dange still plan to continue their fight for equal rights, including workplace discrimination and changing laws around adoption. Dange says, “Even if you lose a battle, the battle is not over.”

But winning their case in the Supreme Court—which could be a landmark step for India’s LGBTQ+ community—”will certainly call for a grand celebration,” says Chakraborty.

“Maybe we’ll even get married again – this time, with legal documents,” he says.

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