Amburi Roy was running late on her first day of college. When she entered class, she saw that all seats were occupied. As she scanned the room for a seat, she saw a girl waving to her, pointing to a vacant seat nearby. Roy went and took a seat next to the girl, Aparna Saha, knowing little that this would be the girl to whom she would get married 18 years later.
“I would not say it was love at first sight,” said Roy, recounting the day from 2004. “It was friendship at first sight.”
However, soon both of them realised that they wanted to be more than friends. But that feeling took some time to process. “Before we met, I never realised that I was attracted to women,” said Saha. “So first it was little resistance from both our sides and we thought what is happening?”
Coming from an orthodox family, both of them had not imagined a relationship beyond a heteronormative setup. “I grew up watching Bollywood films and had no idea what gender identity or sexual orientation was,” she said.
Roy and Saha have come a long way since. They moved in together in 2009 and have been living together ever since.
Getting married and having a child was always on their minds. But with the Indian law failing to recognise same-sex couples, this was not possible. While the two were still considering how to start a family, Covid-19 struck. “Seeing the pandemic hit led us to a scary realisation,” said Roy. “What if something happens to one of us and we are gone without getting married.”
This prompted them to move to Germany in 2021, a place where they can be recognised as a married couple. However, other things, such as adopting a child in India would still be difficult for them. “One of us will still have to say that they are single,” said Saha.
That is when the idea of petitioning the Supreme Court to recognise same-sex couples came to them. “Filing a case is ‘big people’ stuff,” said Roy with a laugh. “It is not something that people like us do.” But their drive to have a family and be recognised as a married couple in India is the only reason for knocking on the doors of the highest court in the country.
Roy and Saha’s petition is among the 20 petitions listed before a five-judge Constitution Bench of the Supreme Court, that have asked that the definition of marriage should also include same-sex and transgender couples. The petitioners include married couples staying in India and abroad, long-time couples looking to get married, and also queers and LGBTQ activists who would like the option of getting married.
Law and its problems
Though the Supreme Court decriminalised homosexuality in 2018, Indian law still does not recognise same-sex marriages. This robs same-sex people of several benefits given to heterosexual couples.
“We have problems even getting a tenancy together,” explained Utkarsh Saxena, a developmental economist and a lawyer who has challenged the matrimonial laws in the country along with his partner Ananya Kotia, an economist. “Even if I adopt as a single man, then the child’s custody would not go to my partner after my death.” Same-sex couples are also not given basic financial benefits, such as getting life and health insurance benefits or opening a joint bank account.
While Kotia and Saxena have been together since 2008, after they met in college, the idea of filing the case came to them only last year. “We would have gotten married much sooner if it was allowed,” said Saxena. “But we did not even think about it, when heterosexual couples take it for granted.”
However, it was the pandemic that made them realise the importance of being recognised as a couple in law. “When Covid-19 hit, we realised that if something were to happen to one of us, we could not decide on each other’s behalf,” added Kotia.
After the court struck down Section 377 – the provision in the Indian Penal Code criminalising homosexuality – the couple noticed more conversations about same-sex couples. Finally, in December 2022, they filed their case before the Supreme Court.
Marriage as a right has been denied to them and they wanted to partake in that, they said.
From being in the closet for close to six years before slowly coming out to close friends and family to making their relationship to the world at large, Kotia and Saxena have come a long way. “We are both shy and private, and this is outside our comfort zone,” said Kotia. “Now we cannot wait to get married and have kids.”
Familial violence
While Kotia and Saxena consider themselves “lucky and privileged” to have families that have supported their sexuality, some petitioners have had to endure threats and violence from their families to be together. Take Bhawna Sen and Kajal Chauhan, a lesbian couple who had to first get protection from the Delhi High Court to stay together, before filing a petition there asking for the right to be married. Now Sen and Chauhan’s petition has also been transferred to the Supreme Court, where it will be heard with other petitioners.
“We first met in 2018 and exchanged numbers,” recounted Chauhan. “Initially, we used to refer to each other as ‘didi’ [or sister].”
Eventually, Sen’s family noticed that she was on her phone a lot. Thinking that she was talking to a boy, her family assaulted her. Then, she left her house to live with Chauhan.
“However, three days after she moved in, her [Sen’s] family came from Delhi [to Punjab] to pick her up,” said Chauhan. “They even threatened me that they will get me kidnapped or killed.” After this, Sen’s family started keeping a close watch on her. However, the two were in touch using a phone that Sen kept hidden from her family.
Chauhan eventually moved to Delhi and contacted Nazariya Foundation, a Delhi-based queer feminist resource group, seeking help.
“Using their help, we approached the Delhi High Court for protection,” she said. “Her family alleged that I have influenced Bhawna since I am older than her in age.” The court eventually ordered that Sen was free to go and live with anyone she wished and she should get access to all her documents.
Then with the help of the Nazariya Foundation, the couple started living in Delhi along with another lesbian couple, without telling Sen’s family where exactly they were. But soon after the couple left the flat, Sen’s family arrived with around 10 people to enquire about them. Now the couple is living at an undisclosed location.
“Through the course of these events, our counsellor asked us if we would want to get married,” said Chauhan. “We said yes without thinking.”
Both their families are not accepting of their relationship. “Our families tell us that they will get us married to any man of our choice,” said Chauhan and Sen. “Par ab humein jeena bhi ek doosre ke sath hai, marne bhi ek doosre ke sath hai.” But now we want to live and die together.
Other petitioners have also faced a challenging time with their own families. “Both our parents are not in agreement about our relationship,” said Aparna Saha.
Amburi Roy added, “My mother went to the extent of saying that Section 377 should never have been struck down, which completely broke my heart.”
Both of them now maintain their distance from their families. “We had a small ceremony for our marriage,” recounted Roy. “But standing in the marriage hall next to her felt magical. I felt that reality was better than my wildest dreams.”
Not just same-sex
Though the case consists of several same-sex couples, there are also queer rights activists behind the petitions. “I saw a stark difference in how bi-national straight couples were treated compared to bi-national queer couples,” said Mario da Penha, another petitioner in the case. He is a PhD candidate at Rutgers University, and is writing a thesis on hijras.
“If a straight person who is a citizen or an overseas citizen of India gets married to a person of a different nationality, then their partner is automatically considered a citizen or an overseas citizen of India,” he explained. “However, this is not true for same-sex or queer couples.”
This was his motivation for filing a petition before the Delhi High Court in 2021, along with others, which is now before the Supreme Court. “Initially, I filed right-to-information petitions to various ministries asking them to define the word ‘spouse’ in the Citizenship Act,” Da Penha said. “But when I saw that the ministries kept bouncing the replies back and forth between each other, we decided that it was in our best interest to approach the court.”
Da Penha identifies as a gay man and was also involved in the case that challenged Section 377. “Our petition also makes a claim that the law should allow for marriages beyond same-couples,” he said. This includes all queer people, such as transgenders and intersexes.
Uphill battle
Apart from their families, the petitioners have faced stiff resistance from the Union government and society at large. The Centre has vehemently opposed these pleas. In an affidavit submitted on Sunday, it said that these petitions represent “urban elitist views”, and that same-sex marriages go against the “Indian family concept”, which has to necessarily be heterosexual.
Similar views are held by a large number of people in the country. Several religious leaders and bodies have opposed the petitions, saying that it goes against religious and societal values. This includes the Hindu nationalist body Rashtriya Swayamsevak Sangh and several Muslim, Jain, Sikh and Christian religious bodies.
However, these couples believe that the law recognising their couplehood is the first step to accepting non-heterosexual relationships.
“Law and society often play catch up with each other,” said Saxena. “The law plays a major role in granting legitimacy to us.” Once the legal stigma against their relationship goes away, it will pave the way for more conversations around same-sex marriages, he believes.
The last few years also give Saxena hope in the changes that might come in the future. “I did not ever imagine that we will be having such open conversations about same-sex marriages in the first place,” he said.
Roy and Saha also believe that the court’s ruling, if positive, will help legitimise their relationship, starting with small things. “When people ask me what has changed in our relationship after our marriage, I say not much,” said Roy. “But it feels amazing when someone refers to her [Saha] as my wife.”
Said Saha: “Often when I referred to her as my “partner”, people would often get confused. Sometimes people have also asked me if she [Roy] is my business partner, which was very exhausting.”
Added Kajal Chauhan, ”We will also get a host of rights. Once legalised, we also would not have to hide our relationship. Right now we say we are just friends in front of a lot of people. That will stop.”
