On February 25, 2020, Delhi high court heard pleas seeking legal recognition for same-sex marriages. As a response to the petitions, the Centre asserted that such marriages do not fall under the ambit of fundamental rights and, instead, are against the country’s customs, tradition and culture. The Centre also argued that despite the decriminalisation of Section 377, the idea of two same-sex individuals living together as a couple cannot be equated to the concept of an “Indian family unit” and would cause a “complete havoc with the delicate balance of personal laws in the country“.
Members of the LGBTQIA+ community have been up in arms against the Centre’s arguments. They see the government’s response as homophobic and point out that not recognising same-sex marriages itself is a violation of the fundamental rights the Indian constitution guarantees.
Marriages are one of civilisation’s oldest forms of institution. Culturally, it has been seen as a symbol of ideal connection and commitment. It holds strong religious and legal significance, to the extent that marriage is seen as the only way of legitimising a romantic relationship between two consulting adults. It is only natural for same-sex couples to seek this validation and be a part of this culture they have grown up in – a wish that transcends the boundaries of sexual orientation.
The legalisation of same-sex marriages can have implications for social acceptance of homosexuality as well. It is a known fact that members of the LGBTQIA+ community often end up living their lives putting on a façade of heterosexuality. Government institutions upholding the validity of marriages provide legal and social protection for couples, who often end up in heterosexual marriages due to societal and family pressure. A 2009 survey by Humsafar Trust – an NGO working towards inclusivity – found that 70% of gay men in Mumbai, and approximately 80% from smaller cities in Maharashtra, ended up getting married under the norms of heterosexuality. This can potentially have a detrimental impact on the physical and mental well-being of the couple.
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Due to the absence of legal documents validating same-sex couples’ relationships, they cannot enjoy financial inclusivity like a heterosexual married couple. Provisions of acts like the Employee Provident Fund Scheme 1952 and Workmen’s Compensation Act 1923 are applicable to relatives related by blood or the spouse only. Additionally, policies regarding opening a joint bank account, settling insurance claims, incurring financial assets, and making decisions in case of medical emergencies also vary for married and unmarried couples.
Members from the community also feel that marriages might make it easier for them to find rental accommodation. “We cannot look for houses in residential areas that want only married couples. Also, no one wants to lend their room to two bachelors because they think we would party and cause a ruckus in their locality. If they know that we are married, they might see us in a different light,” said Raj*, a researcher by profession who belongs to the community.
As of June 2020, 30 countries worldwide have legalised same-sex marriage. The US Supreme court, in its 2015 judgment legalising same-sex marriage, noted that the community must be granted equal dignity before law. In India, Article 14 of the constitution grants the Right to Equality, and Article 21 preserves the right to marry a person as per one’s choice. Not legalising same-sex marriages will essentially violate these and of the UN Human Rights Declaration, which India is a party to.
Moreover, differential treatment of marriage rights for homosexual and heterosexual couples essentially amounts to discrimination based on sexual orientation. This is also against the spirit of the Supreme Court ruling in Navtej Singh Johar vs. Union of India:
“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.”
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Additionally, in the response, the Centre also maintained that the idea of same-sex marriage does not align with the “Indian family unit,” comprising of “biological father”, “biological mother”, and “the children born out of the union between the two”. This statement is not just highly homophobic but also transphobic and completely overlooks the legal mechanisms like child adoption.
The idea of what constitutes a family is evolving. “If a heterosexual couple cannot, or does not, have a child, will they be considered a family as per this statement?” questioned Raj. “I don’t want to marry someone because I want to have kids. I want to marry them because I want to be with them. Having kids is not the only purpose of a marriage!” Raj added. Where on one side, there is Maharashtra’s education department that is introducing the idea of same-sex parents in its school textbooks, statements like these from the Centre can cause unthinkable damage to years of efforts aimed at inclusivity.
It is time we let go of the social structures that enforce heterosexuals as the only acceptable married couple. This push for a marriage law that is equal and non-discriminatory can set a precedent to evolve the country’s financial ecosystem. It is not merely a matter of equality but also inclusivity and correcting for years of wrongdoings against the LGBTQIA+. Contrary to popular belief, homosexuality is not against India’s culture and traditions, but rather, it finds mention in Indian historical texts. Legal acceptance of same-sex marriages will be a visible approval by the state, often used as a yardstick to uphold the sanctity of social relations and customs.
Indeed, the struggle to attain social acceptance for the community does not end here. Often individuals assume the role of custodians of the country’s religious and cultural values and create misleading videos to promote homophobia. The introduction of sex-education and gender-sensitive curriculum at the school level could help broaden people’s understanding of homosexuality and address homophobia. One cannot underestimate the importance of continuous targeted efforts to sensitise society and creating more inclusive workspace/educational institutions. However, legal approval from the state can surely enable better integration.
Shreya Sharma and Karan Babbar are PhD scholars at IIM Ahmedabad.
Featured image credit: Camila Rodrigues/Pixabay