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For marriage ‘equality’ that is truly equal – analysis

Since January, a petition challenging the applicability of the Special Marriage Act, 1954, to heterosexuals has been pending in the Kerala High Court. The petitioners are two gay men — 35-year-old Nikesh PP and 31-year-old Sonu MS —who had a wedding ceremony in the parking lot of a temple in 2018, and then petitioned the court to have their marriage legally solemnised under the secular law that came into existence to facilitate marriages between inter-faith and inter-caste couples who didn’t want to marry under religious personal laws.

On September 8, another petition was filed in the Delhi High Court seeking recognition of gay marriages within the Hindu Marriage Act, 1955, by intersex rights activist Gopi Shankar, the founder of lesbian collective Sakhi, Giti Thadani, transgender rights activist G Oorvasi and writer Abhijit Iyer Mitra.

Their petition states that Section 5 of the Act did not specify that marriage must be between a Hindu man and a Hindu woman, but instead refers to marriage between “two Hindus”. The petition invoked Articles 14 (equality), 21 (life and personal liberty), and 25 (freedom of religion), arguing that the right to marry was thus part of the fundamental rights of Hindu LGBT (Lesbian, Gay, Bisexual, Transgender) couples.

But there is much more to the issue of marriage equality than seeking it for only for Hindu LGBT persons.

How one chooses to demand change — and for whom — is crucial. For one, calling it same-sex marriage is trans-exclusionary, because not every trans person identifies within the binary gender formulation. Hence, same-sex points to gay or lesbian couples, but excludes transmen, transwomen and other gender queer identities. The exclusion is egregious because even the Transgender Persons (Protection of Rights) Act, passed in December 2019, does not touch upon transgender persons’ right to marry. Marriage equality, at a bare minimum, must allow consenting adults to enter into this form of partnership, irrespective of their sexual orientation or gender identity, across castes and religions.

But that’s just one part of it.

At the heart of the debate on granting marriage equality to LGBTI people (the I stands for inter-sex) people is a fundamental contradiction between the right to choose one’s partner and the reality that in the social contract of marriage in India, individual choice is often insignificant, and individual autonomy non-existent. The right to individual autonomy with respect to choosing a partner has been read into constitutional articles by the Supreme Court in path-breaking judgments such as the Hadiya case. Here, the court protected the right of Hadiya, an adult woman who converted from Hinduism to Islam, and wished to remain married to Shafin Jahan, a choice that was opposed by her father, who moved the Kerala High Court to regain control over his “child”. Countless other inter-caste, inter-religious and intra-gotra couples have faced violence, and even been murdered. This has a stifling effect on the freedom to choose one’s partner. In fact, the architect of the Indian Constitution, BR Ambedkar had pointed out decades ago, “As long as caste in India exists, Hindus will hardly intermarry or have any social intercourse with outsiders…”

The feminist movement has critiqued the unequal power structures within the institution of marriage, which the courts have tried to balance through judgments over decades. The inequality written into the institution is both a function of social norms as well as regressive legislation, such as the non-criminalisation of marital rape and the failure of the executive to right this wrong. That women’s consent is considered unimportant in heterosexual marriages is our cue that marriage equality is more than a debate about making it legal for LGBTI people.

Perhaps a more radical solution needs to be imagined: A partnership of equals in a format that empowers individuals whether straight or queer, married or in live-in relationships, to form contracts that they choose, whether of property or insurance or to avail tax benefits, and where religion, caste and gender identity are irrelevant.

It also cannot continue to be left to the courts to do the duty of the executive. The State must step up to its responsibility in guaranteeing constitutional rights, ensuring that a free choice to enter egalitarian legal partnerships is granted, upheld and protected.


The views expressed are personal

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