Anita Anand | Imagining a new form of marriage in India: It has to start with a law

Imagine a nuclear family in India: Mother, father, and children. Imagine an extended family: grandparents, parents and children, aunts, uncles, and their children.

Now imagine another kind of family: Two women, with or without children. Or two men, with or without children. Is this kind of family possible? It could be. But would it be legal, and would they enjoy the same rights as heterosexual couples and families?

At this moment, India’s Supreme Court is hearing petitions to legalise same-sex marriage. Over the last decade, acceptance of homosexuality has grown in India, especially since the Supreme Court decriminalised homosexuality in 2018, with a ruling that legalised consenting gay sex.

Legality is only a beginning, an important beginning. Attitudes to sex and sexuality remain conservative and activists say most lesbian, gay, bisexual, trans and queer or questioning, intersex, asexual, and more (LGBTQIA+) people are afraid to come out, even to their friends and family. Same-sex couples in India face significant legal and social challenges.

LGBTQIA+ couples cannot adopt children or have a child by surrogacy; they do not have automatic rights to inheritance, maintenance and tax benefits; after a partner passes away, they cannot avail of benefits like pension or compensation; they cannot be party in living will or right to life decisions, as they are not next of kin, not related by blood or marriage.

Most of all, since marriage is a social institution, created by and highly regulated by law, without this social sanction, same-sex couples struggle to make a life together. They face discrimination and harassment from their families, schools and colleges, the police, the healthcare system and the workplace. They face violence and threats from their own families,

who are supposed to offer the most support. It is these realities and incidences that have urged activists to petition the Supreme Court to legalise same-sex marriage.

The government argues that while the right to love and cohabit is a fundamental right, but marriage itself is “not an absolute right”, not even among heterosexual couples, and that Parliament, not the courts, should decide on the legality of same-sex marriages. The present government, in power since 2014, however, has not spoken in one voice. Back in 2013, when the Supreme Court overturned the Delhi high court’s decision on punishing sex between two consenting adults, Yogi Adityanath, now Uttar Pradesh chief minister, but then a BJP Member of Parliament, welcomed it, asserting he was opposed to any move to decriminalise homosexuality. In 2017, Rashtriya Swayamsevak Sangh (RSS) leader Mohan Bhagwat said that members of the queer community are human beings who should have their own private and public space, and the right to live as others, the mainstream heterosexual community.

There is no reason the government should speak in one voice. There needs to be no party line in matters of the heart and the Constitution of India guarantees basic and important fundamental rights. The Special Marriage Act 1954 allows people from different religious backgrounds to marry and spells out the procedure for solemnisation and registration of marriage, where the spouse could be Hindus, Buddhists, Jains, Sikhs or even atheists. So, why not same-sex marriage?

The opposition to same-sex marriage comes from expected quarters. The Central government believes that giving recognition to same-sex marriage is beyond judicial adjudication and the petitions before the Supreme Court reflect urban elitist views for the purpose of social acceptance. Other organisations, religious and otherwise, argue that the recognition would be an attack of the “family system” and adoption of children by same-sex couples could affect children adversely.

But this “family system” is not an institution carved in stone. It has changed, continues to and needs to change. Once the family was a joint family, and several generations living together, with a patriarchal head, in rural or urban India. Arranged marriages were the norm and reproduction was essential to continue the family line, preferably with sons. If persons of the same sex were attracted to each other, they were shamed and often hurriedly marriages were arranged to “normalise” them. Many gay people lead double lives, with much unhappiness on all sides. There were other kinds of families, headed by single women or men, or widows living on their own with children, which fell outside the definition of a “typical” family. In recent times, many single people do not want to marry or have children. The times change.

The goal and role of governance is to provide and ensure the pre-requisites of a happy society. Most adults dream of finding a partner with whom they can share a life and make a home. It could be persons of the same or opposite sex. The Supreme Court, in legalising consenting gay sex, then has a responsibility to take steps to put into action the legalisation of further rights that heterosexuals have. If the matter resides in Parliament, then it must work with the judiciary, and consider revisions to the Special Marriage Act. Or even the enactment of an entirely new law.

People have a right to live and love in families. Society does and will find it difficult to accept same-sex families and marriages, used to heterosexual couples. There is a fear of homosexuality. What we do not know, we fear. But those asking for same-sex marriages and the rights and privileges that come with it, also deserve the same rights and privileges that heterosexuals enjoy.

However long people take to change behaviour, India’s legislators need to take the first steps. And then, take things to their logical conclusion.