Recently, four petitioners from the LGBTQ community filed a petition in the Delhi High Court to recognize same-sex (gay/lesbian) marriage between two Hindus according to section 5 of the Hindu Marriage Act of 1955.
Section 5 of Hindu Marriage Act, 1955 reads
“A marriage may be solemnized between any two Hindus,…”
The petitioners have argued that the Hindu Marriage Act does not differentiate between homosexual and heterosexual marriage, it deems marriage legal when it is between any two Hindus.
The Government, represented by the Solicitor General of India, Tushar Mehta has argued that marriage is a sacred bond, it should only occur between a biological man and a biological woman… yada yada. He says,
“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. (1)
But he also managed to bring up a very interesting point.
He said the relief sought by the petitioners cannot be granted unless several laws are altered. This, he said, is something the courts cannot do. (2)
Basically, “we should not give gays marriage rights because then we’ll have to give them other rights that come with marriage and that’s just way too much effort for courts.”
There have been multiple attempts at legalization of same-sex marriage in the name of marriage equality. At first glance, an average Upper Caste Hindu homosexual would not think twice about the problematic aspect of wanting the right to marriage for same-sex couples. If cishet couples have the right to marry, which also grants them a lot more legal privileges, then why is it so wrong to ask for same sex marriage, right? Right?
We all want a little bit of Jaane Tu Ya Jaane Na and a little more of Love Actually and You’ve Got Mail. What is love, if not to feel like finding a Raj to your Simran… but y’know… gayer.
So, if we look at our whole argument from a bird’s eye view, we want same sex marriage rights so
- We can become a legally valid married couple
- We can be safeguarded against marital abuse and domestic violence by in-laws (not marital rape though ‘cause we’re cool that way)
- We can adopt children
- And the many other privileges that we can acquire but ONLY as a married couple… and that too… only if you’re a cisgender Hindu
Cis dominant, homonationalistic, Hindutva ideologies… the saffron Kurta-clad version of your average rainbow coloured burger king without beef- *waves frantically* is that you, Abhijit Iyer-Mitra? THE QUEER-RIGHTS ADVOCATE WHO SUPPORTS QUEERPHOBIA? Be my daddy.
All the petitioners are vocal extreme right wing and RSS supporters (3). They simply do not represent the entire population of people who would affected by same-sex marriage rights.
What’s so problematic about wanting same-sex marriage is elementary, if you ask me.
First of all, and most importantly, marriage in itself is a patriarchal institution that thrives on validating values of ownership by the patriarch of personhood and bodies of the oppressed. Marriage, as an institution, is fed and nurtured by the ideas of romanticizing humanified feudal dynamics between the parties involved in a marriage and the fetishization of the such feudalistic ownership of one’s person.
Conforming to such marital norms by LGBs, is popularly called conforming to homonormativity. It is essentially mimicking heteronormativity, mostly by homosexuals, in order to feel included. This results in massive exclusion of non-binary folks who are very conveniently dropped out of the debate for marriage rights.
Even more so, homonormativity of debates for such marital institutions imply that all LGBTQIA+ folks can only function as valid individuals with the privilege of protection against domestic violence, provision for health insurance etc., if they’re married to another person. In our case, this other person can only be of the same sex as yours.
The arguments being put forward for same-sex marriage in court are favoring deprivation of LGBTQ+ rights as singular intersectional humans, as unmarried individuals.
Moreover, asking for same-sex marriage according to the Hindu Marriage Act fails to address the abhorrent casteism, classism, colorism and ableism within the LGBTQIA+ community. These systems of exclusion from within the community put non-binary folks, ethical non-monogamists etc., especially queers with psycho-social disabilities from the DBA community.
There is a court case being fought (represented) by cisgender Brahmins, both parties- one of which is a nationalist and the other homonationalist. Both parties explicitly endorse RSS- an absolutely misogynist, sexist, queerphobic, Brahminical and capitalist organization. These people with Hindutva-soaked brains, want to tell me that they’re fighting for equality… while enforcing another oppressive system that will be really, and I mean REALLY, counterintuitive to our whole movement…
I don’t condone this saffronisation of my rainbow, and if you call yourself my ally, you shouldn’t either.
1. Ahsan, Sofi. ‘Our values don’t recognise same-sex marriage’: Centre tells Delhi HC. The Indian Express. [Online] September 15, 2020. https://indianexpress.com/article/india/same-sex-marriage-plea-delhi-high-court-6595470/.
2. MANDHANI, APOORVA. ‘Same-sex marriage not a part of our culture’, says top govt lawyer, opposes plea in Delhi HC. The Print. [Online] September 14, 2020. https://theprint.in/judiciary/same-sex-marriage-not-a-part-of-our-culture-says-central-govt-opposes-plea-in-delhi-hc/502232/.
3. Sal. Recognition Of Same-Sex Relationships In India. Gaysi Family. [Online] September 16, 2020. http://gaysifamily.com/2020/09/16/recognition-of-same-sex-relationships-in-india/.