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At the root of SC case on gay marriage rights, the Kerala same-sex couple who started it all

Many problems in their relationship were not considered valid. The government did not recognise their marriage—no documents, no inheritance rights.

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Sometime in the latter half of 2019, Nikesh PP and Sonu MS chanced upon a talk by advocate Manu Srinath on YouTube on the need for ‘marriage equality’ and approached him with an unusual request. Having exchanged garlands and rings in the parking lot of Kerala’s Guruvayur Temple away from any prying eyes a year earlier, the couple now wanted to live a ‘married’ life and not as an ‘anomaly.’ That’s how their pioneering journey to fight for marriage rights for gay couples began. Their fight has now reached the Supreme Court of India.

Same same-sex relationships are still frowned upon in Indian society, and existing laws have no provision that extends the benefits of marriage to anyone other than hetrosexual couples. 

“The Supreme Court had only decriminalised same-sex relationships but nothing outside of this. But while living in the real world, there are many problems as our relationship is not considered valid,” Nikesh told ThePrint over the phone.

He initially sounded hesitant, but as the conversion proceeded, his determination and resolve to make them India’s first legally married gay couple is evident. 

The 38-year-old businessman added that the government does not recognise their marriage nor any related documents or inheritance rights. “We cannot open a joint bank account or sign documents of consent during medical emergencies and now we have to even tick the single box and not the married one on any forms,” he said.

Nikhil and Sonu narrated their entire history to Srinath, who then started searching for answers. 

The Hindu Marriage Act does not recognise same-sex marriage, so they thought to take the Special Marriage Act route, which also indirectly prohibits such marital unions,” Srinath said. “It is challenging the constitutionality of a Central Act….it’s not an easy thing,” said Srinath.

After the couple approached him, Srinath and around five lawyers from his firm started dedicating a few hours a day to this case. Srinath often spends his weekends on research. 

Following the filing of the case in the Kerala High Court in 2020 and around 12-13 postings, the matter was transferred to the Supreme Court in January. Incidentally, Nikhil and Sonu weren’t the only gay couple in India to turn to the courts. The SC asked that all cases related to same-sex marriages be transferred before them as there were multiple such petitions pending before the Delhi High Court as well as Kerala among other places.

It is expected to hear arguments in this case in March this year, and pinned on it are the hopes of thousands of people from the LGBTQ community.

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Looking for a relationship

Both Sonu and Nikesh were in their early teens when they realised they were attracted to men, but they would not cross paths until decades later in 2018. 

“I was from the north side of Kerala, while Sonu battled with his own struggles about 200 km south in Thiruvananthapuram. We both knew of our sexual orientation from a very young age but could not do much about it,” Nikesh said. He speaks on Sonu’s behalf, to shield him from the media glare. The case has gained traction not just in India, but is making headlines in international media outlets as well.

“In college in Thiruvananthapuram, Sonu struggled. No one understood his needs when he wanted to join the cricket team. When he did come out, he faced a lot of discrimination and then migrated to Bengaluru,” Sreekutty Namitha, a transwoman and Sonu’s friend from college said. 

As adults, Nikesh and Sonu were both on gay dating apps like ‘Planet Romeo’ and ‘Grinder,’ but in this case, their profile status made the difference. Nikesh said that the majority of the people on these sites are ‘looking for casual sex’. “But both of us had ‘looking for a relationship’ as our status, prompting us to look each other up.” 

And about six months into the relationship, the two decided to get married. 

Things have changed for the couple since their marriage. More importantly, their families have accepted the choice of their children.

“Now all have accepted us after initial hesitation due to societal pressure,” Nikesh said. The two families now visit the couple, who live in an apartment in Ernakulam. 

Transgenders, same-sex relationships have a recorded history of nearly 4,000 years as they find mentions in ancient texts like Mahabharata, the Ramayana, and Vatsyayana’s Kama Sutra. Kerala also subscribes to this history but, like most other parts of India, is yet to accept same-sex relationships or queer people. 

Alex Mathew, aka Maya the Drag Queen, a performer from Bengaluru, dispelled the myth that ‘gay’ and ‘trans’ are a western construct. 

“They keep saying homosexuality is a western import..actually homophobia and transphobia is a western import. It is being ingrained into us that it is not natural but it has been for centuries,” Mathew said.

He added that the legislation can change the conversation on what, currently, the community is facing. “Right now people are being ignorant. Hope this becomes a landmark case.”

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Common compendium

Shashi Tharoor, Congress MP from Kerala, had unsuccessfully moved a private member’s bill seeking to decriminalise homosexuality in the Lok Sabha in 2015

In 2020, Prime Minister Narendra Modi-led Bharatiya Janata Party opposed the expansion of the Hindu Marriage Act to include same-sex relationships, even though the chief of its ideological parent, the Rashtriya Swayamsevak Sangh, has softened its stand on the issue, stating that people who practise same-sex relationships have always been there and are a part of society.

Sushil Modi, the former deputy chief minister of Bihar, had said that the issue cannot be decided by a ‘couple of judges,’ citing that it is not part of Indian culture and values.

“Usually, there is a presumption of constitutionality for every statute, and usually judges require a lot of evidence and persuasion to hold a law unconstitutional, especially when it is passed by parliament,” Srinath said.

He added that in the hearings before the Kerala High Court, the Union government did not submit its response to the court.

Nikesh and Sonu had shared notes and facts with the advocate, but the legal research is being done by the lawyers in Kerala as well as others appearing in similar cases, mostly from Delhi. Now, lawyers representing similar petitions in other courts are sharing notes and their respective filings.

“We also need to come up with a common compendium of arguments, written submissions along with the authorities that we are going to cite. There are Indian and international judgments, other literature, opinions rendered by jurors and others,” Srinath said. 

Nikesh and Sonu have become celebrities, but they never sought fame.  

“We don’t want any such status nor are we working towards it. Our goal in this fight for our rights is that it will become a guiding light for those coming after us. That’s our only intention,” Nikesh said.

(Edited by Tarannum Khan)

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