Recognition Of Same-Sex Relationships In India

Recognition of Queer Relationships in Law –

  • Indian marriages have both religious and civil nature. While personal laws such as Indian Christian Marriages Act, Parsi Marriage Act, Hindu Marriage Act, etc. govern respective religious marriages exclusively within the communities, with a wide interpretation of who is a Hindu,[1] any two people can enter into marriage by receiving a license by the State under the secular law, Special Marriage Act (SMA), even if their religion doesn’t approve of or recognize their relationship.
  • As has been argued in petitions before Kerala HC and Delhi HC to amend SMA,[2] and HMA,[3] respectively, although none of the personal laws prohibit marriage between a gay and lesbian couple, the language of the laws overly presumes a heterosexual couples by using gendered terms such as ‘bride’ and ‘bridegroom’. Such exclusion as has been argued in both the petitions violates various fundamental rights to marry of a gay couple as law discriminates against them solely on the basis of their sexuality.[4] The words “Same-Sex Marriage” erase Trans, Non-binary and Intersex people. It would be more inclusionary if we ask for gender neutral language of laws such as spouse.
  • In 2019, Supreme Court dismissed a review petition of Navtej judgement which seek extension of civil rights such as inheritance, marriage, adoption because it was considered to be outside the scope of legal issue of decriminalization of consensual intercourse between homosexual adults being challenge.[5]
  • Madras HC recognised rights of transgender people to get married under marriage laws by interpreting bride under Sec. 5(a) of Hindu Marriage Act (HMA) to include a trans-woman and intersex people who identify as a woman,[6] but unfortunately the act continues to exclude non-binary people and other non-hetero-normative queer relationships.

Need For The Amendment?

  • Marriage is considered by some individuals to be an expression of the deepest commitment to their relationship and also provides them with social legitimacy. Moreover, in India, an entire legal regime of rights are bundled with the status of marriage which presumes an heterosexual family unit, and this bias results in rendering queer people what Judith Butler calls ‘unviable (un)subject’ by depriving them of various rights which facilitate creation and maintenance of familial units.[7]
  • Right to maintenance, inheritance, protection under Domestic Violence Act, adoption, surrogacy, legitimacy of children, tax exemptions, a right to own joint bank accounts, lockers; nominate each other as nominee in insurance, pension, gratuity papers etc.
  • Although there have been customary marriages performed between gay and lesbian couples leading to social recognition and emotional fulfillment for some, it never received legal recognition which results in great stigmatization and marginalization.[8] As of now, only ‘live-in’ relationships between same-sex couples in recognised under law. [9] “Marriage Project” seeks to provide legal recognition to same-sex couples allows them to become rights-bearing subject and uphold their fundamental rights as citizens.[10]

Issues with the Petition in Delhi HC–

  • Legal issue – State of Bombay v. Narasu Appa Mali,[11] the Bombay High Court distinguished personal laws from other laws since they are grounded in religion rather than purely legislative enactments, hence exempting them from challenge on grounds of violation of fundamental rights. Although this decision has attracted criticism, for instance recently by Justice Chandrachud in Sabrimala judgement,[12] it is yet to be overturned, which would act as an obstacle to any challenge to the personal law such as HMA for breaching fundamental rights under the Constitution of India.
  • Moral Issues – All the petitioners are vocal supporters of the extremist right-wing organisation RSS and its political wing BJP which leads to concern of saffronisation of the Indian queer movement and threatens further marginalisation of vulnerable members of the queer communities such as dalits and muslims. They use analogy of inter-caste marriage and heavily rely on constitutional principles advocated by Ambedkar while continuing to inflict violence upon dalits and muslims. This is pink-washing[13] by these groups to recruit conservative queers to further their political agenda of creation of ‘Hindu Rashtra’.
  • The petition to challenge only HMA and not all personal laws can be stemming from an aim to further demonise other religious communities for being exclusionary specifically Christian community who were credited to be solely responsible for anti-sodomy laws ignoring the larger cultural context.[14] Since the disputed provisions are similar to the ones in other personal laws, it would be better if court interprets all laws in gender neutral terms to avoid distortion and guide the legislature to overhaul other laws as well which presume hetero-normativity.
  • Interstingly, the Solicitor General as his personal opinion has responded to the petition claiming “our laws, society, values don’t recognize marriage – which is a sacrament – between a same-sex couple” which reflects the continuous exclusionary attitude of the state so there seems to be a dissonance within the conservative organisation.[15] An official response by the Centre is yet to be filed however since centre filed an affidavit during Navtej hearing clarifying their intention to oppose any arguments for recognition of same-sex marriage.[16]

Issues with Marriage Project

  • Radical Queer Critique – Queerness embodies within itself a rejection of the primacy of the heterosexual, patriarchal family as the cornerstone of our society.[17] Equality for some is mis-interpreted as liberation for everyone. Moreover, petitions continue to entrench monogamy by asking for inclusion of only monogamous gay couples and furthering conservative discourse of “normalization/assimilation” thereby excluding and furthering stigmatization of a vast section of the queer community that practices non conjugal forms of intimacy and kinship, as abnormal or even pathological. These include extended chosen families structure of caring and mentoring such as gharanas by hijras, single parents, people in open/polysexual/polyamorous relationships.[18] It can be argued that such exclusion when legitimized by the state results in discrimination of these communities and violates their fundamental rights by breaching constitutional promise of substantive equality before law.[19] Hence there is a need to expand demand from not just recognition of same-sex marriage but alternative family structures while being critical of which all aspects of life can and should legitimately be governed by the State.
  • Marxist critique – Family structure based solely on monogamous heterosexual unit allows for the retention of inheritance and property rights within the generational unit.[20]
  • Dalit critique – “Marriage Project” has historically been protested for being a priority for mostly elite gay and lesbian upper caste people who are the most privileged within the queer community thereby drawing our attention to the hierarchies within the community and urging us to be intersection with our approach especially in light of limited resources by activists like Akhil Kang, Vqueeram Aditya Sahai. [21] Many queer activists believe that the queer movement in India should focus instead on immediate issues that are faced by the vulnerable people in the community such as banning Conversion therapy, regressive Trans Rights Act, strengthening grass-root organisations helping young youths get shelter, Anti-discrimination laws, job reservations, hetero-normative Surrogacy and Adoption laws instead of striving for assimilation in a historically patriarchal institution.[22]

[1] Section 2 (1), HMA, – This Act applies to” (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj, (b) to any person who is a Buddhist, Jaina or Sikh by religion, and (c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion.

[2]https://indianexpress.com/article/india/kerala/gay-couple-files-plea-in-kerala-hc-for-registration-of-same-sex-marriage-under-special-marriage-act-6238216/

[3]https://www.hindustantimes.com/india-news/delhi-hc-to-hear-pil-on-same-sex-marriage/story-xvrG4MazpZZ3I0JsfcMViM.html

[4] Violates Art 14 (equal protection under law), 15(1) (non-discrimination on grounds of sexual orientation), 19 (1)(c) (right to form union), 21 (violation of right to life by infringing privacy and autonomy).

[5] https://www.newindianexpress.com/nation/2019/apr/16/sc-dismisses-plea-seeking-civil-rights-for-homosexuals-1964716.html

[6] Arun Kumar vs. The Inspector General of Registration ,W.P. (MD) No. 4125 OF 2019 And W.M.P. (MD) No. 3220 of 2019

[7] Judith Butler, ‘Imitation and Gender Insubordination’, in The Lesbian and Gay Studies Reader (Henry Abelove et al., eds.), Routledge, New York, 1993, p. 312.

[8] Humjinsi: A Resource Book on Lesbian, Gay and Bisexual Rights in India (Bina Fernandez, ed.), India Centre for Human Rights and Law, Mumbai, 2002, p.195-212.

[9]  Sreeja v Commissioner of Police WP(Crl.).No. 372 of 2018.

[10] “Marriage Project” as Menaka Guruswamy and Arundhati Katju, name it  has been considered by some to be the next logical step of queer movement – https://www.youtube.com/watch?v=-Lp6H4YYN-k

[11] State of Bombay v. Narsu Appa Mali (Air 1952 BOM 84)

[12] Writ Petition (Civil) No. 373 Of 2006 Indian Young Lawyers Association v. The State of Kerala

[13] Pinkwashing is a term with multiple meanings, but most commonly refers to the deliberate appropriation of sexual liberation movements towards regressive political ends – https://femmagazine.com/feminism-101-what-is-pinkwashing/

[14] https://www-newsclick-in.cdn.ampproject.org/v/s/www.newsclick.in/Homonationalism-Pinkwashing-India?amp=&usqp=mq331AQFKAGwASA%3D&amp_js_v=0.1#aoh=16001627036551&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fwww.newsclick.in%2FHomonationalism-Pinkwashing-India

[15] https://www.newindianexpress.com/nation/2020/sep/15/same-sex-marriages-not-part-of-indian-culture-andlaw-solicitor-general-tells-delhi-hc-2196968.html

[16] https://thewire.in/lgbtqia/modi-govt-to-sc-stick-to-reviewing-377-dont-look-at-other-rights-for-lgbt-community

[17] Arvind Narrain, Alok Gupta eds., Law like Love (New Delhi: Yoda Press, 2011).

[18] https://mronline.org/2009/05/16/interview-with-judith-butler-gender-is-extramoral/

[19] Substantive equality revisited by Sandra Fredman.

[20]  Origin of the family, private property, and the state. New York, Pathfinder Press [1972] (OCoLC)568761440 Online version: Engels, Friedrich, 1820-1895

[21] https://www.instagram.com/tv/CDWhXilpgfC/?igshid=3jrj36liew6r

[22] https://www.instagram.com/p/CFH8yF_Jd8h/, https://www.firstpost.com/india/same-sex-marriage-gets-a-push-in-india-but-some-in-queer-community-feel-other-rights-require-more-urgent-attention-8592451.html

About the guest author

Sal

Sal, Convenor of National Law School Queer Alliance. Fifth year student at National Law School, Bangalore. Founder, Law Schools' Queer Alliance. To further clarify my positionality on the issue, I identify as Asexual, Panromantic, Polyamorous Agender, my pronouns are they/them. I belong to Upper Caste, middle class family and live in a tier 2 city.
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