Same-Sex Marriages In India

Almost two years have passed since the historic IPC Section 377 Judgement, in which the Supreme Court of India decriminalized homosexuality. The 200+ page judgement not only highlights the grounds of decriminalization, but also some of the comments made by the opposition. For example, one of the parties opposed to the judgement said,

“if Section 377 is declared unconstitutional, then the family system which is the bulwark of social culture will be in shambles, the institution of marriage will be detrimentally affected and rampant homosexual activities for money would tempt and corrupt young Indians into this trade.”

This argument (and other similar others) failed in court. Moreover, these claims are not backed by evidence. On the contrary, with changing times and changing social mores, our ideas of what constitutes a ‘family’ has begun to change. Eventually, the court sided with the petitioners by saying, “A person’s sexual orientation is intrinsic to their being. It is connected with their individuality and identity. A classification which discriminates between persons based on their innate nature would be violative of their fundamental rights, and cannot withstand the test of constitutional morality.”

Just over two years after the Supreme Court decriminalised consensual homosexual relations, the Centre on Monday opposed a petition seeking the registration of same-sex marriages under The Hindu Marriage Act, 1955, submitting that “our law, legal system, society, our values” do not recognise such unions.

Solicitor General of India Tushar Mehta made the submission at the beginning of the hearing before a Division Bench of Chief Justice D N Patel and Justice Prateek Jalan.

“Subject to my taking instructions (from the government), my legal take is it is not permissible”, Mehta told the court.

Allowing the prayer would run contrary to existing statutory provisions, the SG said. “Our law, legal system, society, our values do not recognise the marriage – which is a sacrament – between a same-sex couple,” he said.

One among the couple has to be a man and the other a woman to fall or not fall within the degrees of prohibited relationships under the Act, he added.

“This is not as per my instructions. I checked up the law and unless and until the court would do violence to many provisions of law, this cannot be permitted,” Mehta said.

He submitted that he would not even file an affidavit in response to the public interest plea, and would only rely on statutory provisions. Referring to specific provisions relating to domestic violence, Mehta asked: “Who will be treated as a wife (in a same-sex marriage)?”

On the Supreme Court’s September 6, 2018 order reading down IPC Section 377, Mehta submitted: “The judgment of the Constitution Bench merely decriminalises homosexuality or lesbians. Nothing more, nothing less.”

The High Court questioned the need for filing a PIL in the case, and told the counsel for petitioners that the persons could come to the court in the event of denial of registration. Adjourning the matter to October 21, the court asked the counsel to bring on record instances of, or facts about the denial of registration of marriage to same-sex couples.

The Bench had earlier observed that changes were happening across the world, and that it would keep an open mind while hearing the matter on merits. “What our constitutional values require, we will see…,” the court said.

Advocate Raghav Awasthi, who appeared for petitioner Abhijit Iyer Mitra and others, argued that in the absence of a declaration from a court or authority, same-sex couples were being denied registration of their marriage under the 1955 Act. This, the counsel said, was happening despite the Supreme Court’s verdict on IPC Section 377. It was also argued that the definition within The Hindu Marriage Act does not say that the marriage has to take place between a ‘man’ and a ‘woman’.

Awasthi submitted that the denial of registration impacted both the right to equality and the right to life, because benefits available to heterosexual couples were denied to homosexual couples.

The court was told that one of the petitioners wanted to get his marriage registered, and that some couples who had been denied registration, were reluctant to approach the court.

The Supreme Court of India has, through a long history of jurisprudence, passed judgements aimed at protecting couples and relationships that went against societal norms. From protecting inter-caste couples, to inter-faith and even inter-racial couples, the Constitution has granted people equal protection from violence and concomitantly recognized that, in a multi-cultural, multi-faith and secular nation like ours, Indian minorities deserve these special protections when attacked by orthodox social forces. Thus, it was all but natural to legally challenge the (un)constitutionality of LGBT+ relationships vis-à-vis the sodomy law, and that was exactly what happened in 2016.

The remarkable aspect of the Section 377 judgement was that it placed the LGBTQ+ community within the ambit of the constitutional compact as sexual minorities wanting the rights and freedoms, which were hitherto denied to them. Justice Indu Malhotra rightly said, “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries. The members of this community were compelled to live a life full of fear of reprisal and persecution.”

The young Indians—gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all wanted the same thing—a lasting long term relationship recognized by society and by the law. In fact, part of what makes for a wholesome life is not just occupational success, but also personal success. The core part of many people’s happiness comes from having someone in their life whom they can love and whom the law of the land recognises as a valid partner or spouse worthy of recognition. India is, after all, a kin-based society and a family society.

Shethepeople.tv denotes in details on same-sex marriages in India:

Arundhati Katju and Menaka Guruswamy, two of the lawyers that fought this legal battle against 377 in court have now put forth the plan of fighting for the recognition of same-sex marriages.

Same-sex marriage is legal in 29 countries across the globe as of May 2020. While many see the legalisation of same-sex marriages as the next obvious step, others from within the community view this move as exclusive.

The Marriage Project, a legal framework aimed at making same-sex marriages constitutional rights has been underway ever since the decriminalisation of section 377. According to Guruswamy, “gay or straight, Hindu or Muslim, upper caste or lower caste, male or female, all desire the same thing: a lasting long-term relationship ‘recognised by the society and law'”. This project aims to bring some systematic amends to legitimatise same-sex marriage legally, by getting long term relationships recognised by society and legalisation the same by the constitution.

Why is this the next step forward?

After 377 was decriminalised, not much changed for the Indian queer community. Decriminalisation is not the same as recognition, thus, even though consenting adults can enter non-heterosexual relationships, these relationships don’t stand at the workplace, in insurance claims, property rights, inheritance and whatnot. In the words of the lawyers, “marriage is a bundle of rights“. All these accompanying benefits across sectors are intricately tied to blood relations – those that involve a parent, a child or a spouse.

In the Indian context, this becomes even more rigid. Guruswamy elaborates in the video recorded at Oxford, “We are a country that sanctifies on kind of relationship – marriage and policing a relationship has been integral to our legal history.” In Indian society, marriage is the only legally and socially acceptable form of union between two people. So it is said if the queer community is to be assimilated, it has to be done within these folds. While the law doesn’t allow same-sex marriages, couples can opt for a ‘Civil Union’ under the Special Marriages Act 1954. Further, India being a collectivist culture is a kin-based society, holding the institutions of family and marriage very close.

What marriage entails

Marriage comes with a series of ‘benefits’- legal recognition, which amounts to a right of maintenance, right of inheritance, a right to own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers, etc. Some people see it as just a celebration of love, and in a civilised society- this must extend to all. However, marriage just ceases to be just so flowery and happy.

I believe the institution of marriage is a patriarchal one, it’s built on the structure of endogamy, monogamy and economic inequality. Over here, it is a means of retaining caste purity, control of property and institutionalisation of the private. Marriage is a regressive institution, it delegitimises non-monogamous relationships, normalises cultured gender norms and regulates caste, gender and patriarchy. Rather than liberate, it provides a tool for the state to control monitor, who is and isn’t respectable. Therefore, for a community whose existence is so deeply entrenched as an opposition to the heteronormative state, this replications feels counteractive. And I spoke about the same to many.

Is it too early for this movement?

Like economics, there has been a myth of the trickle-down effect in social reform as well. While 377 has been struck down, only the most privileged queers have been benefited. The upper caste, upper class, cisgender queers enjoy this impunity. However, a large portion of the community is still left disenfranchised due to the intersectionality of their struggles. Therefore, the celebration of marriage benefits a minuscule portion of the queer population. To say, that this will extend and trickle down to liberate a larger number of disadvantaged queer people is to buy into that fallacy. As I see it, the queer community has a lot of inherent casteism, classism, misogyny and islamophobia to look into. Once marriage comes into place, the gap here just widens and only ‘respectable’ queers can enjoy this indemnity.

Also, there are a string of pending reforms that must be instilled before this right to marriage. There is a need for comprehensive anti-discrimination legislation in India. The NALSA verdict should be implemented, an affirmative action to be extended to trans people. Queer people shouldn’t be detained for highlighting political struggles at pride. Clearly, there are a host of priorities for the queer community which much be addressed prior to this movement.

Deborishi, a member of the queer community feels “Same sex marriage may only attend to the rights of the privileged cis LGBQ populace and not the rights of the rest who belong to the LGBTQIA+ fold. There are further important concerns for the rest of us: Trans rights, social integrity, social inclusion etc. What can be the point of benefiting some and leaving out the rest?”

The question of morality has been tied to queer existence since its inception. There are a few things Indian society still views as immoral, premarital sex, inter-caste marriages to name a few. Once marriage for queer people is recognised and moral, does it amount to liberation in a society so entrenched on these archaic values? Does marital rape within queer married couples become permissible? Do we adapt to the system of dowry that is still widespread? To buy into marriage is to also buy into the ‘ideals’ that control it.

Marriage is seen as an eventuality- marriage follows love. Which also translates into the business of the state to grant and take away sexual and civil rights. The rewards of marriage should be for all, regardless of marital status.

The queer movement has gone from opposing a system that privileges some people, to ask for a share of that privilege. This thrives on the idea that queers, once married are normal. Gay marriage will too be built on an idealised notion of the traditional family and also that of control. To buy into the heteronormative structure of this would be homo-normality: replication of heteronormative ideals and constructs for LGBT people. Isn’t queerness an identity that can thrive independent of the heterostructures.

Who gets left behind?

Firstly, the terminology is to be questioned. Same-sex marriage rights are not the same as the right to marry someone regardless of sex and gender. The former functions in a cisgender world and the latter in one which is more inclusive of trans, non-binary and intersex people. Adding to that, to call this move, one for the whole LGBTQIA+ community would be misleading.

The benefits and recognition is likely to be limited to cisgender people only. Like most movements, trans people, non-binary people and intersex people get left behind. Further, as long as marriage exists in Indian society, it is bound to be of caste purity and maintaining monogamy. Inter-caste marriages have been legal for almost 70 years, even now only 5% of marriages are inter-caste. Monogamy is the norm and bringing the law into this contract only strengthens that. Polyamory, widely observed within the queer community has no space here too. Reji, another queer member of the community believes that “prioritising same sex marriage as the next step for the community is only being pushed by LGB or heterosexual people”.

Krishanu, who identifies as Non binary said “I feel that such an idea that same sex marriage is the next big thing in India’s queer politics is a reductionist point of view where queer lives are to be judged by the heteronormative marker of progress. The idea of marriage in the imagination of queer existence also needs to evolve from a lens that is now dominated by party gays to involve the ideas of the trans Ace enby intersex and other marginalised population within the community”

If a prochoice morality exists, queer couples that pine for marriage get to get their share. Queer people, like all others, also crave solidarity, from their families, their church and temples and also the law. Marriage is just one of the ways to seek that. Further, the problem of caste, endogamy and monogamy is not exclusive to marriage. It exists in all relationships, those tied by marriage of not. Therefore, to bring reform here would be to work more deeply in all queer relationships, from dating to chosen families.

There were varied responses from within and outside the community. Many homophobes believe this will be against the ethos of Indian culture, and immoral. Within the community itself there are mixed views. Another person commented, “Legalising same-sex marriage may seem like the perfect next step to many but I’m afraid we’ll go down the same path as the US: rights for ‘respectable queers'(upper caste, monogamous, wanting to mimic heterosexual marriage) at the cost of everyone else. ”

It is uncertain how this battle will play out. While many support this movement, there are various battles to be fought before this pursuit can be seen as liberation for the LGBTQIA+ community.