It’s Time: Path to Marriage Equality in India.
The world is evolving more than ever and a lot of us are facing difficulty in keeping up with the changing times. Gone are the days when people were ashamed of their sexuality. Same sex marriage has been a topic that has sparked both emotional and political clashes between supporters and opponents for years.
In today’s world, an ideal marriage is based on the notion of two equals, seeking love, stability and happiness together. However the idea of equality in a marriage itself is barely 50 years old. The current day relationships are based on companionship, respect and mutual sexual attraction, a lot more freedom that there used to be. Couples make decisions about their lives together – the number of children they want, or if they want kids at all, division of labour is flexible, the option of divorce if they are unhappy and so on. All these are fairly new developments, and it is only reasonable to expect the institution of marriage to continue to change over time.
In the Indian context, there were far too many challenges. Patriarchy, child-brides, unequal relationships were all deterrents to our hope. And as we take small faltering steps in the pursuit of an ideal society, the question is - when do we begin to recognise same sex marriages? The answer seems to be a long way off.
An upstanding citizen who pays their taxes, serves their community and abides by the law should be afforded the rights of any Indian citizen. However, not all citizens get equal rights. The people from the LQBTQ+ community are consistently denied rights that are typically taken for granted by an average Indian. Specifically, gay and lesbians couples are denied the right to even marry if they are upstanding citizens. They are held at an unfair disadvantage solely because of their sexual orientation. This discrimination must stop because they are law-abiding citizens too, who ought to be provided the same rights as heterosexual couples.
One common problem that plagues these couples is their inability to claim their partner’s social security after one of them pass away. The ones who suffer the greatest repercussions of such prejudices are the children of homosexual couples. These non-biological children cannot receive survivor benefits if the deceased partner did not legally adopt them. But how is this related to whether or not homosexuals should be allowed to marry?
Same-sex couples do have the privilege of adopting children to begin a family of their own. However, they are often rejected because of their unmarried status. The government directly discriminates against the children of same-sex marriages by not allowing them the same rights as children who have heterosexual parents. Children do not chose who their parents are regardless of your stance on the issue!
Recently the Centre told the Delhi High Court that ‘our laws, our legal system, our society and our values do not recognise marriage…between same-sex couples’. They are not alone. This sentiment is echoed by many others.
Sexuality, reproduction and marriage are closely intertwined and often tough for societies to resolve. It has often sparked emotional, religious and political debates. We witnessed that in the 2018, when the Supreme Court, after much deliberation and delay, finally de-criminalised consensual gay sex. It took many years to do away with the archaic law that had lost its relevance in modern times. We are now free to choose our partners in bed, but what about life?
With a steady advance in the acceptance of LGBTQ+ rights, a growing number of countries are legalising same sex weddings. The institution of marriage in its current form, encompasses love, conversations, sex, procreation, sharing responsibilities and happiness. There are technical aspects like property, inheritance, insurance, visitation rights in healthcare and custody and so on. Marriage is the building block of stable communities. By what logic then should the government regulate the relationship between two consenting adults. Specifically denying same sex couples the full rights of marriage is obviously discriminatory!
The institution of marriage is a patriarchal one, it’s built on the structure of endogamy, monogamy and economic inequality. Over here, it is also 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.
The question of morality has been tied to queer existence since its inception. There are a few things Indian society still views as immoral such as premarital sex or at times even 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? 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. Marriage comes with a series of ‘benefits’- legal recognition, which amounts to a right of maintenance, right to inheritance, a right to own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers, etc. Some people just see it as a celebration of love, and in a civilised society- this must extend to all. However, marriages just cease to be just so flowery and happy as they are imagined.
Forbidding homosexual marriage is making their union less valuable than the “normal” by preventing it from reaching an official level. Marriage is no longer based on complementary, gender-based roles, and therefore the gender of participants no longer matters.
Social concepts change, usually not because they are 'forced' or because they are attacks on the traditional, but because society evolves. Traditions are abandoned, changed, or conserved throughout history.
Another question here is why should such marriages happen only under the Hindu Marriage Act? One of the first acts of prime minister Jawaharlal Nehru after Independence was to clean up Hindu personal law through the Hindu Code Bills, ushering modernity in marriage, succession and other laws. However, he left Muslim personal law untouched.
Why should another set of changes be carried out for just Hindus, Sikhs, Buddhists and Jains by leaving out other Indians? Why can’t the Special Marriage Act of 1954, which applies to people from all faiths, be amended to allow same-sex marriage?
Better still, we should soon get a progressive Uniform Civil Code under which LGBTQIA civil unions are solemnised. And before we rush into legalising gay marriage, nuanced issues like child adoptions should be wisely, meticulously debated and thrashed out.
The time to allow same-sex marriages or civil unions has come. But problematic areas should be ironed out, and the right should be given to Indians of all faiths. In India we have seen the Court intervene in cases of inter-religion and inter-caste marriages to protect our choices. This must extend to other groups. The law must ensure equality in the truest sense.
The battle for gay rights has been long and difficult. It took years for the courts to accept it as not an ‘unnatural offence’. There was much reason to celebrate the abolishment of Article 377, but that is just the beginning! Hopefully there will come a time when a big fat Indian wedding will have two brides or two grooms. That will be a case for celebration.
The struggle for the LGBTQ+ community will continue. Up next will be the fight for adoption, artificial insemination, names on birth certificates and so on and on. It is a long road ahead and we take one small step at a time, as long as it is in the right direction, it is a great effort!
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