In 2009, the Delhi High Court read down Section 377 of the Indian Penal Code, which criminalizes “carnal intercourse against the order of nature.” The Court found that criminalisation of consensual sex between adults in private violates the Indian Constitution’s guarantees of dignity, equality, and freedom from discrimination based on sexual orientation. After an appeal by private anti-LGBT parties (the government chose not to appeal), the case is now pending before the Supreme Court of India. It is truly a landmark moment for the LGBT community in India: the Lawrence v. Texas of India.
While the defeat of Section 377 will be a joyous occasion for the LGBT community, everyone recognizes that it is a starting point and not an end to the fight for LGBT rights. Maya, one of the leaders of Parma, often says, “even after 377, elopement is still illegal.” What she means is that even though same sex love may no longer be criminal in and of itself after 377 is finally defeated, there are still ways in which LGBT people can be subjected to criminal charges simply because they try to exercise their right to be with people that they love.
It is extremely rare for family members to accept “same sex” love, whether between two lesbians or a female-to-male transgender individual and his partner. In order to be together in any meaningful way, and often to avoid the arranged marriage of one of the partners, the couples “elope,” meaning that they run away together. Families have a very strong reaction and frequently file kidnapping or abduction charges, depending on the ages of the people involved, in an attempt to retrieve their child. Families sometimes also accuse their children or the partner of theft. These are all ways of enlisting the police in the search for missing family members. If a family, with or without the police, finds their child they may forcibly take the child back to the family home, separating them from their partner. The only legal recourse for the partner at this stage is to file a habeas corpus petition, which will force the family to bring the child to court so that she can say what she wants. This process can take so long that by the time the child is produced in court she has been put under so much pressure by her family that she says she wants to stay with them. This problem is not unique to the LGBT community. A similar series of events often occurs with “love-marriage” couples. Perveez Mody has written a fascinating book on love-marriages that includes an enlightening discussion of the elopement issue and helps to explain how families are compelled to attempt to retrieve their child.
We were working together to identify next steps for the community after Section 377 is defeated. We agreed on several priorities and projects, including an anti-discrimination policy, which Meredith wrote about in her blog. We also agreed that couples will continue to need help navigating the difficult issues surrounding elopement. Parma and Alternative Law Forum will be collaborating over the coming months to develop a guide for couples that can help them with pre- and post-elopement issues. As part of this process we will be documenting the stories of some of the couples that Parma has helped already. I hope that I will be able to share at least one of those stories in a future blog…
Posted By Samantha Syverson (India)
Posted Jun 26th, 2011