In the winter of 2020, as part of my fieldwork, I met a timid, young man who had travelled from Himachal Pradesh to Delhi to shop for his impending marriage. The man — who may have felt scared to explore his sexuality in the small town that he lived in — felt the stress of his nuptials weighing him down. As we walked around a garden with bougainvillea blooming, he confessed he was scared about his wedding because he was queer, but didn’t know how to come to terms with it, or explain it to his conservative family, friends and local society. “Do you think I’ll survive?” he asked.
This conundrum must be familiar to many people belonging to the lesbian, gay, bisexual, transgender, queer, intersex and asexual (LGBTQIA+) communities who find themselves forced into unhappy or violent marriages against their wishes or consent, unable to explain the truth of their lives to their closest friends or loved ones. Still others spend years looking for companionship or seeking State recognition for their relationship. It is against this backdrop of violence, discrimination and hope that two sets of petitions were filed in the Supreme Court last week. Both sets of petitioners asked the apex court to grant them the legal right to marry their partners, seeking a change in the 1954 Special Marriage Act. A bunch of similar petitions were pending before various high courts, but that didn’t stop the top court from issuing notice to the Union government and seeking its response in four weeks.
The ball on the legalisation of same-sex marriage in India has been set rolling — in a fashion identical to the movements in the United States (US) and many European countries, which moved from the decriminalisation of homosexuality to granting civil rights to queer communities to allowing them to legally marry and adopt. The world over, the roadmap of rights for the LBTQIA+ communities has been similar — first grant them basic rights (affirm their right to live and remove the stigma of criminality or imprisonment), then expand the gamut of rights to include so-called love rights (civil partnership, quasi recognition in financial and legal sectors), and finally grant them full citizenship rights, including marriage, adoption and inheritance. This template is recent — in the US, same-sex marriage was granted recognition in 2015 — but is increasingly gaining salience.
In India, however, there is a crucial difference. The institution of marriage may be hallowed here, but it is incredibly fraught. This is a country where many couples routinely face violence and harassment for marrying outside their caste or community, where intercaste and interfaith marriages represent only a small fraction of legalised unions and where many queer relationships still follow social conventions of caste and faith.
As the two couples have rightly argued before the court, the absence of legalisation of same-sex marriages impedes inheritance, adoption, financial planning and accessing government benefits. These are important rights and denying them to same-sex couples is blatant discrimination. But it must also be remembered that State recognition can only go so far in breaking socially sanctioned sources of bias such as caste, which have resisted numerous legal interventions. It will need sustained efforts from activists and the government. In a country where marrying the person of your choice can sometimes result in death, let this moment lead to a deeper conversation on love, community, rights and marriage.
Dhiren Borisa is assistant professor, Jindal Global Law School
The views expressed are personal.
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