A case for marriage equality

Legal recognition of queerness and love should not be opposed by the state or by proponents of the doctrine of separation of powers

Updated - April 05, 2023 01:01 am IST

Published - April 05, 2023 12:12 am IST

Sougata Basu and Mayank Kalra walk outside their home with their adopted children in Bengaluru.

Sougata Basu and Mayank Kalra walk outside their home with their adopted children in Bengaluru. | Photo Credit: AFP

On March 12, the Centre filed an affidavit in the Supreme Court frowning upon same-sex marriage. It invoked the “accepted view” that a marriage between a biological man and woman is a “holy union, a sacrament and sanskar (culture)” in India. Many hold the view that the issue should be debated by Parliament and not by the courts. More than 20 retired judges issued a statement saying that legalisation of same-sex marriage will “strike at the very root of the family system” and that “such a sensitive issue concerning the society at large be debated in the Parliament and State Legislature as well.” The Union Law Minister argued that the issue should be left to the “wisdom of the people.” And law professors such as Tahir Mahmood and G.S. Bajpai have also written about it.

But this will never happen. As the Union government has made its position clear on the legalisation of same-sex marriage and holds the view that queer people like me will wreak havoc on social institutions with our demands, Parliament will never enact such a law.

Also read | Same-sex marriages: A matter for Parliament

Citizens with equal rights

Let us examine some of these arguments. First, it is argued that legalising queer marriages will destroy the concept of family, which is the “fundamental building block of society.” For long, queer people have had to deal with their rights being granted as gifts from heteronormative society. But no more. We are equal citizens of the country and deserve the same rights as cisgender heterosexual people. Queer people are demanding equal rights, not just of marriage, but of horizontal reservation and protection from natal families. We don’t demand these as largesse to be bestowed upon us by society, but that they be accorded to us as equal citizens of this democratic nation.

It is also argued that this is not a matter of judicial interference, but one of interpreting the statutes. For laypersons and lawyers alike, the interpretation of statutes is an art. It is not rare to find headlines with rulings that say ‘frozen parathas are not rotis’ or that ‘Sachin Tendulkar is an actor and not a cricketer’. These examples simply show how lawyers often bend over backwards to interpret statutes in a way that fits their case. There is no reason that statutes cannot be interpreted creatively in favour of fundamental rights.

It is true that laws relating to marriage have a religious genesis. However, Indian law on marriage is a mixture of common law and religion. While traditionally, marriage under Hindu law is a sacrament, it stopped being so when divorce was introduced. Marriage is now nothing but a status conferred by law. The court said in the Sabarimala case that religion must give way to constitutional morality, though a review of the judgment is pending. Nevertheless, most parties in the marriage equality case before the court are those who want to get married under the Hindu Marriage Act. Queer relationships were not an aberration in Hinduism, as scholars Ruth Vanita and Saleem Kidwai have demonstrated. The remaining petitions are filed under the Special Marriage Act, save for Zainab Patel’s petition which argues for marriage equality under all religious laws.

It is also argued that the laws pertaining to marriage necessitate procreation. While this may be true, there seem to be no attempts to take away the marriage rights of heterosexual married couples who do not procreate as per mutual consent. While entering into a queer relationship, both parties are aware that they will be unable to procreate. This is called ‘social’ or ‘circumstantial’ infertility. The term was initially coined to describe women who did not have children despite no medical condition, and is now used in the context of queer people too. If both parties decide to marry with the knowledge that one or both of them are impotent, there cannot be a case for taking away their rights merely because they are queer.

It is also said that conventional conceptualisations of family and marriage are facing evolutionary challenges. This argument is based on the idea that a family comprises two parents of the opposite sex and their two children. This argument makes it seem as though new forms of marriage which are non-heterosexual are new. They are not. The hijara ‘gharana’ system, maitri karar and other forms of alternative familial structures have existed for a long time in the sub-continent.

A legitimate legal need

This is not to argue that marriage will lead to queer liberation. In fact, marriage does not obfuscate but lays bare the caste hierarchies that embolden discrimination and segregation. But despite being a faulty institution, marriage is a legitimate legal need in order to file taxes jointly, inherit property, open bank accounts, and choose nominees for insurance policies.

Also read | Why same-sex couples are pushing for legal sanction of marriage

Queer people cannot wait until society thinks it is acceptable for us to have rights. We refuse to be polite citizens, we will continue to be unapologetic about our sexuality, and we will continue to challenge widespread notions of respectability, of marriage, and procreation. We refuse to cower in the terror of knowing that the only way we can survive is if we are smart, lucky, or are fighters. We demand that notions of family and traditions be broadened and notions of acceptability and respectability be demolished. Legal recognition of queerness and love should not be opposed by the state or by some supposedly well-meaning proponents of the doctrine of separation of powers. Queerness and queer love deserve not just legal recognition by the state, but to be celebrated.

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