Reflections on the demand for same-sex marriage in India: Are the discussions around same-sex marriage as progressive as they sound?
After watching the news and various other media to learn about the current discourse on legalising same-sex marriage in India, I noticed that there are only two prominent perspectives being discussed. First, gay rights activists believe that the legislation will carve a path towards equality for the LGBTQIA+ community with regards to various rights and freedoms that are currently only awarded to heterosexual couples. Second, conservative voices, such as Tushar Mehta, a lawyer for India’s federal government, opposed the Public Interest Litigation (PIL), claiming that same-sex marriage contradicts Indian societal and familial values and culture.
However, after several weeks of pondering over the implications of the possible legalisation of same-sex marriage, I realised that my opinion does not quite fit into the ones mentioned above. Many times, in our attempts to be progressive, we overlook several troubling factors in seemingly liberal ideas and support them blindly. It is something that I have done in the past and am actively working on dismantling. Through this article, I will try to shed light on three loopholes in the seemingly progressive push for the legalisation of gay marriage in India.
1. Marriage is an inherently patriarchal institution:
In my opinion, the dominant family structure observed in India, is in place for two main reasons: maintaining wealth and purity under an overarching patriarchal framework. Our society demands that wealth and property must be passed on from generation to generation and seldom leave the ancestral lineage. Additionally, it also maintains that people shouldn’t marry outside the major pre-existing societal barriers of caste, class, and religion. Blood, much like money, must be passed down without “contamination” by outsiders.
The problem with these demands (aside from being deeply discriminatory) is that in the quest for maintaining purity and wealth, society restricts people (mainly women) from exploring sexuality and intimacy in their youth and quickly makes them tie the knot with someone who they ‘make sense with.’ These restrictions and regulations could be the reason many women feel compelled to stay in abusive and/or loveless marriages.
Many feminists condemn marriage because of these very connotations and its role to play in the patriarchy. So, why should the LGBTQIA+ community have to conform to this heteropatriarchal standard? Why should we fit into a social structure that we want to dismantle?
Now that the conversation of marriage has been brought up in the Supreme Court, I think the LGBTQIA+ community along with feminists have a chance to reimagine and reinscribe partnership in the eyes of the law, and create a legal system that can grant anyone (regardless of gender and sexuality) the rights brought about by such a partnership. Why should two people have to get married in order to receive rights in say, insurance, property, visitation, adoption or inheritance? And this is not just for members of the LGBTQIA+ community. This applies to heterosexual couples that have been together for a long time but don’t want to get married, as well. It could be friends or cohabitants too.
An article written by Rhaina Cohen for The Atlantic talks about the place of friendships in a world that revolves around romantic partnership. “Because friendship is outside the realm of legal protection, the law perpetuates the norm that friendships are less valuable than romantic relationships,” she writes. The world we should imagine is one where everyone has the rights that marriage provides without having to make a restrictive commitment that lasts a lifetime.
Women in India, in particular, receive certain rights when they are married, such as the right to maintenance in case of divorce. Not many unmarried women in long term heterosexual relationships receive the same rights since not all live-in relationships are seen as equivalent to marriage in the eyes of the court.
So many queer people in this country are displaced because their families are not accepting of their identities. According to a 2019 report by the International Commission of Jurists, LGBTQ homelessness comes with a compounded risk due to factors like violence and socio-economic deprivations. They are forced to live in harmful circumstances because of the intolerance of their families and communities. Such a person should not have to leave any wealth that they own, to those abusive guardians after their passing, and a civil union or companionship law would be able to assist them in making sure that everything that they own goes only to people of their choice (irrespective of the nature of their relationship).
We need to be able to think beyond the status quo of first parental and then spousal unions and stop trying to push LGBTQIA+ folx to fit into pre-existing folds and structures of marriage and family.
2. Gender neutrality can be anti-women:
Gender neutrality, much like many seemingly progressive aspirations, isn’t really all that equitable. It places women in positions of extreme vulnerability in a society where the scales are already grossly tipped in favour of cis-het men. The purpose of terms like ‘wife,’ ‘husband,’ ‘man,’ and ‘woman’ in marriage laws (and a few other laws on sexual violence and harassment as well) is to protect a socially-marginalised demographic of individuals.
When a woman faces intimate partner violence, it is her right to file a case against her husband (or in-laws) under the Domestic Violence Act. This exclusivity ensures that women have safeguards and measures in place, in case of injustice.
If the law was gender-neutral, as not just gay rights activists, but also some feminists are proposing, the woman’s husband would be able to file a counter-case to manipulate the situation and mislead the legal proceedings. In spite of being in support of gender-neutral laws, Senior Advocate Karuna Nandy said “If a Thakur man raped a Dalit woman, he would be advised by his lawyer to file an FIR against the Dalit woman,” making an argument against gender neutrality in India’s rape and sexual harassment laws.
Making these laws gender neutral will further complicate an already exhausting path to justice for women and leaves room for the perpetrator to victimise himself. A law isn’t meant to look good on paper; it is meant to be put to use. So, when pushing so hard to change such a law that has been structured in such a deliberate, workable way and fought for, by the women before us, we must ask ourselves: Who will benefit from this? Who will manipulate this? And most importantly, who will be negatively impacted by this?
3. Marriage is not the “logical next step”:
“The logical next step”
This is a phrase that I’ve been hearing over and over again on the news and in various media platforms, but it just doesn’t sit well with me. To me, bringing about change and acceptance involves two things: legal/structural change as well as social change. Decriminalising homosexuality can be seen as a form of structural change. However, after 2018, there have been hardly any ‘social change’ measures taken to ensure that the queer community is fully integrated into Indian society.
The logical next step for the community would involve anti-discrimination programs to protect them from the blatant violence, harassment and bullying they currently face in both educational intuitions as well as places of work. The logical next step would involve creating affirmative action and reservation for the community (particularly transgender people, since the very recent and regressive Transgender Persons Bill that does not provide reservation for them and harms the very community it appears to protect). The logical next step would involve taking a good look at our current sex education curriculum and filling in the huge, dangerous gaps in our current system (including information and discussions on consent, gender, sexuality, sexual health and safe sex). The logical next step would involve social inclusion, shelter homes, upliftment. Unfortunately, none of these measures have been taken which means that only a few privileged queer people, who are already socially accepted, have managed to fully enjoy the decrimnalisation of homosexuality.
And if you actually think about the gay rights movement, marriage was never the agenda of the community as a whole. Of course, they demanded and continue to demand basic rights and freedoms of partnership, inheritance, and being able to raise a child, but marriage was never part of these demands. It is only a certain demographic — upper class and upper caste queer people — that is demanding the legislation of same-sex marriage. Perhaps, the elaborate and extravagant wedding celebrations by queer NRIs has a large role to play in influencing us to think that that is what we must aspire to.
And while the general demeanour of the community has a reputation of being accepting, inclusive and activists for various different marginalised people, the truth of the situation is, that it is not uncommon to find extremely casteist, sexist, Islamophobic, racist, and classist people in the community.
If you just think about the fact that the Public Interest Litigation was filed to introduce same-sex into solely the Hindu Marriage Act rather than the Special Marriage Act, you will realise that many of these people have absolutely no intention of including marginalised LGBTQ folx in their fight. The PIL filed was both selfish and simply a way to criticise other religions for being regressive if the Supreme Court decided to act in favour of the PIL.
This intentional exclusion brings me back to the very intention of marriage that we find problematic; the way people use it to keep the bloodline “pure” and prevent any sort of pushing of the boundaries. This is the reason such savarna, upper class people that are part of the community would even push for such a thing as marriage. They have no intention of changing the status quo; only of joining it.
It just goes to show that saying marriage is the logical next step is loaded with entitlement and it is only being said because it’s the logical next step for privileged people. These people aren’t considering the whole community in their fight. We need to focus on making Indian society a comfortable place for all members of the community so that they can express themselves sexually and romantically, if they choose to do so.
At the same time, I stand by what I said in the first section about companionship laws as they are definitely necessary, but I think we need to start being proactive and creative and thinking outside the framework that the patriarchy has provided us with. As a nation, the current conversations on marriage can either be a path towards completely revamping the way we view family, love, and relationships or it can be just another way for us to take away beauty, intersectionality, diversity and freedom from the LGBTQIA+ community and force them into the regressive structures of Indian law and society.
The choice is truly ours.
Editor - Sanviti Iyer
Head Editor - Vibhavari Desai
