India's Solution for Gay Sex? Straight Marriage

04 November 2014
Published in Blog

By Seema Iyer, Esq.

November 4, 2014

On November 1, 1968 a young Indian couple, chaperoned by their parents, first met over tea. Two days later they were married.

Those crazy kids are my parents and that, my friends, is what we call arranged marriage. Sure the concept has evolved, now it’s almost a match.com for people of the same caste, class, religion and of course from the same “village” or “native place” (Think ‘hood’ or ‘block’).  And like online dating, many arrangements are made on the internet. The fundamental principle behind this type of marriage is what underlies its continued practice – procreate with your kind. Custom reigns supreme in India. Don’t mess with it.

A case grabbing international headlines has put a spotlight on India’s intolerance towards breaking with tradition. A 32-year old software engineer has been arrested for cheating on his wife with a man under an 1861 (no, that’s not a typo) law that basically criminalizes gay sex.

Section 377 of the Indian Penal Code states in part that anyone who “voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished” and faces life in prison. While its intent was to prevent homosexuality the law by definition extends to certain heterosexual acts – though it is unlikely such prosecution is enforced.

The “Bangalore Techie” as he’s being called was only married a year before his new bride caught him on camera with a man in their home. For the first six months of marriage they lived apart due to work. After they started living together he would sleep in a separate room. She tried talking to her in-laws, who, in true Indian fashion, blamed her for being difficult. She encouraged him to seek medical attention, which he did not. After hearing from neighbors that male visitors would frequent the home in her absence, together with her own observations of her husband’s behavior, the wife set up a hidden camera.

The wife seems fiercely determined to see her husband prosecuted under this archaic law which in 2009 was struck down by the New Delhi High Court, only to be reinstated by The Supreme Court of India in December 2013.

I spoke with retired Justice PK Balasubramanyan who sat on the Supreme Court of India from 2004-2007 about this case. He explained, “prosecutions are highly rare.” Justice Balasubramanyan added that in his fifty year legal career not even one Section 377 case came across his desk. He noted that while the law appeared to be “discriminatory,” the Supreme Court overturned the Delhi High Court’s decision because there was inadequate basis to rule the law unconstitutional.

Danish Sheikh, Alternative Law Forum attorney, wrote in the Yale Human Rights and Development Journal, that a major theme during the Supreme Court arguments was the interpretation of Section 377, that it does not “make explicit reference to a particular act or sexual identity.” Perhaps that is how the Supreme Court justifies their reasoning. That – is what they call ‘equal protection under the law’ I suppose.

The young bride is even including her husband’s parents in her complaint alleging they knew he was gay yet still orchestrated the marriage. It appears though she is actually aligning with his parents, if they in fact were aware, in penalizing his sexuality. Of course, he should not have married her, but most of us cannot begin to comprehend living in a place that would easier banish you then support your personal choices.  

In a 2012 piece for the Huffington Post “Gay Indian Men Speak Out on Forced Marriages” Betwa Sharma reports that “[T]housands of gay men in India are leading a double life.” And while Section 377 was still decriminalized at that point it was a mere “technicality” in light of “family pressure” where parents “force marriage at the cost of children’s happiness, and sometimes their lives.”

Sharma goes on to explain that wives cannot leave “due to parental and societal pressures”. Then perhaps we should be applauding the Bangalore Techie’s bride for wanting to see her husband spend the rest of his life in prison.

She could have shown strength and left him. She could have shown compassion and support him. Or she could have said nothing; just remain in a loveless, sexless, lifeless marriage. She chose revenge.

Does the Bangalore Techie’s bride think she is the first casualty of arranged marriage??? As a product of one and as someone who was surrounded by them I had an up-close view to A LOT of unhappy heterosexual people. Talk about “against the order of nature”.

I don’t have to give you stats on how many arranged marriages end in divorce because most do not. In India we are taught ‘til misery do you part”. Forget gay or straight. Forget Indian, American or Chinese. It is simply about being pushed into a life that you did not choose. It is about not having the courage or support to redeem your existence. It is about perpetuating a cycle of gloom.

So, what do you do? Maybe you wait thirty years. Maybe you wait until you have some independence. Maybe you wait until you have a good job. And maybe the wait for a joyous life was worth it. My mother certainly thinks so.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq

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