Homosexuality vs same-sex marriages: India's one step forward, two steps backwards

The Centre has maintained an adversarial view towards allowing or legalising same-sex marriage, despite a landmark Supreme Court judgment that read down archaic laws criminalising homosexual relations.

Ananya Srivastava October 26, 2021 19:05:54 IST
Homosexuality vs same-sex marriages: India's one step forward, two steps backwards

File image of Queer activists celebrating in front of Supreme Court after the historic verdict of September 6, 2018. PTI

The BJP-led Centre, which has been trying to bring in a Uniform Civil Code under the pretext of extending equal marital rights to all Indians, has curiously been intent on discounting the same basic rights of homosexual couples. The disparity in its position, which continues to be dictated by heterosexual norms, was propelled back in the limelight as the Delhi High Court dealt with a clutch of petitions relating to same-sex marriages. The final hearing is due on 30 November.

What's the case about?

In the first petition, Abhijit Iyer Mitra and three others have contended that same-sex marriages are not possible despite the Supreme Court decriminalising consensual homosexual acts and sought a declaration to recognise them under the Hindu Marriage Act (HMA) and Special Marriage Act (SMA).

The two other pleas are -- one filed by two women seeking to get married under the SMA and challenging provisions of the statute to the extent that it does not provide for same-sex marriages, and the other filed by two men who got married in the US but were denied registration of their marriage under the Foreign Marriage Act (FMA).

Another petition seeks to allow a foreign-origin spouse of an Overseas Citizen of India cardholder to apply for OCI registration regardless of gender or sexual orientation.

What's the Centre's stance?

The Centre has maintained an adversarial view towards allowing or legalising same-sex marriages, despite a landmark Supreme Court judgment that read down archaic laws criminalising homosexual relations.

Let's start with the latest comments.

Solicitor General Tushar Mehta, representing the Centre in the aforementioned case, argued that a 'spouse' means either husband or wife and 'marriage' is a term associated with heterosexual couples and there was no need to file a specific reply regarding the Citizenship Act.

"The law as it stands...personal laws are settled and marriage which is contemplated to be is between a biological man and a biological woman," he said, adding that using the apex court judgment on Section 377 of IPC to demand legalisation of same-sex marriages was wrong.

"The issue here is whether marriage is permissible between homosexual couples. Your lordships have to see that. There is some misconception regarding Navtej Singh Johar case. It merely decriminalises consensual homosexual acts. It does not talk about marriage," Mehta contended.

Earlier too, the Central government has opposed same-sex marriage on the grounds that marriage in India is not just a union of two individuals but an institution between a biological man and a woman.

In its 50-page counter-affidavit opposing homosexuals' right to get married and to start a family, the Centre made several contentious claims. It said that the reading down of Section 377 criminalising gay sex by the Supreme Court “neither intended to nor did, in fact, legitimise the human conduct in question”.  It said that if same-sex marriage is recognised, it would not merely create “havoc” with “personal laws” but would also lead to “legitimise" a particular "human conduct”. Activists argue that such interpretation of the law, by extension would mean that same-sex relation, although not criminal, is still something to be hidden from the larger consciousness of society.

What's the contention?

During the hearing, advocate Karuna Nundy, appearing for one of the couples, said that her clients got married in New York and the law applicable in their case are the Citizenship Act, the FMA and the SMA.

She further submitted that the Citizenship Act is silent on the gender and sexuality of the spouse and it provides that a person married to an overseas citizen of India whose marriage is registered and subsisting for two years should be declared eligible to apply as a spouse for an OCI card.

Nundy pointed out that the government has not yet filed a reply to her petition.

Senior advocate Saurabh Kirpal, representing another couple, said while the apex court's 2018 judgment does not expressly allow same-sex marriage, the inevitable implication in the Constitutional matter favours recognising it and that this is how Constitutional jurisprudence works.

The petition filed by equal rights activists Mitra, Gopi Shankar M, Giti Thadani and G Oorvasi contended that homosexual sex has been decriminalised by the apex court but same-sex marriages are still not being allowed under the provisions of the HMA.

In this view of the matter, it can be stated that it is against the constitutional mandate of non-arbitrariness if the said right is not extended to homosexuals apart from heterosexual couples, said the petition.

Why is Centre's position in the case problematic?

The mainstream understanding of marriage in India is still cis-normative and heteronormative. But does this mean that sexual minorities should not be afforded the same rights and protections afforded to the majority population? The Constitution has recognised the need to protect and encourage religious and ethnic minorities by introducing special provisions. Then the Centre's insistence on keeping sexual minorities out of the basic laws governing every other Indian is baffling, no matter how you see it.

Socially, the Centre's position means that queer couples, who already face ostracisation, hostility and discrimination in a conservative society, cannot redeem their relationship legally or as per communal norms in any way. Since the Centre refuses to let them 'legitimise' their relation, it continues to be 'illegitimate' in the eyes of law and society.

Legally, every Indian citizen (who is not queer) has the right to choose which family law will apply to them based on their community or religion. None of these codified marriage acts explicitly defines marriage as between a man and a woman, neither do these acts explicitly prohibit same-sex unions. However, the laws have "heteronormative underpinnings" and have been traditionally interpreted not to recognise same-sex unions. The courts will have to deal with the questions as to why this should not be deemed arbitrary.

Furthermore, even when examined from the lens of basic equality in society, Centre's arguments imply that it fails to see non-heterosexual Indians as rights-bearing citizens constitutive of the Indian family unit. Take, for example, the plight of the petitioners in this case.

The two women have said in their plea that they have been living together as a couple for eight years, in love with each other sharing the highs and lows of life, but unable to marry as they are a same-sex couple. The women, aged 47 years and 36 years, have contended that not being allowed to get married has denied them several rights -- owning a house, opening a bank account, getting family life insurance -- which opposite-sex couples take for granted.

The two men who were married in the United States, say that because they were a same-sex couple, their marriage was not registered under the FMA by the Indian consulate. The non-recognition of their marriage by the laws here continues to disentitle them to travel as a married couple to India.

Likewise, homosexual couples are denied basic necessities that other heterosexual couples take for granted. Same-sex couples cannot become each other's medical proxy unless they legally make such a provision. They do not naturally inherit the property of their partner after their death unless their right is preserved by a will, which again can be contested in court. Even the simple process of setting up a joint bank account is tedious for queer couples because they can't!. They are compelled to set up a company through which they can then run an account.

Even though there is little hope that the Centre may change its position, as it continues to be guided by heterosexual society, the queer society has been pinning its hopes on the judiciary. The next date of hearing is 30 November when both sides will conclude their arguments.

Also Read: Two decades since the world's first legal same-sex marriages, where do we stand now?

Also Read: Arundhati Katju: Section 377 was never only about sex, it was actually about right to citizenship

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