Same-sex marriage gets a push in India, but some in queer community feel other rights require more urgent attention

The landmark Supreme Court judgment of 6 September, 2018, which struck down parts of Section 377 and decriminalised homosexuality, opened up a new range of possibilities for the LGBTQIA community. Considering how family-oriented Indian society is, one progressive step in mainstreaming queer rights is legalising same-sex marriage. Twenty-nine countries across the world, including Taiwan, South Africa, Portugal and the UK, have already done so.

A few days ago, when lawyers Menaka Guruswamy and Arundhati Katju spoke about their 'Marriage Project' at the Oxford Union, it garnered both support and criticism from the queer community. In her address, Guruswamy described the project and spoke about how in India, the “law has been about policing love, whether it is inter-racial, inter-caste relationships etc” historically. Enabling diverse marriages has been a project of modern contemporary constitutional India, but that has not been the norm when it comes to the social, religious and civilisational India, she said, adding that same-sex marriages also fall within the purview of this constitutional, moral and legal arc.

An ongoing battle in Kerala

This isn’t the first time that the issue of legalising same-sex marriage has been raised in India. In fact, the Kerala High Court began hearing a case petitioned by Nikesh Usha Pushkaran and Sonu MS in January 2020. Sonu and Nikesh got married in a Kerala temple in July 2018 and have been living together since, but they feel discriminated against as they don’t have the same legal rights as other couples do. They also feel they lack social acceptance.

“We want to be included in society. In my apartment building, there are heterosexual individuals and some queer people as well. We don’t want to feel as though we are any different from straight people. Societal acceptance is important, especially in a country such as India, where excessive weightage is given to marriage and it is considered sacred. When two heterosexual people get married, they are accepted as a couple from that day onward, but that hasn’t been true for us. After the 2018 judgment, we have the right to have sex and live together, but none of the other rights enjoyed by married couples. We filed this case because we want those same rights,” Nikesh said to Firstpost. The couple's case found mention in Katju and Guruswamy's address.

The rights Nikesh referred to include the right to inherit each other’s property, nominate one's spouse as a partner in life insurance schemes, becoming a co-signer on a lease, get medical insurance together, open a joint bank account, and so on.

Nikesh describes the daily struggles he faces. “When I go to the bank or have to fill any form, I still have to tick the box that says I am 'single', not married." Speaking about their case, their lawyer Manu Srinath says that they sought a legal remedy because they were aggrieved by their situation. "The law cannot allow only a certain section of people to get married. This is essentially a censure of equality, which is why I have reservations when people say, there is another side to it. I cannot appreciate the 'other side' to legalising same-sex marriage. Anyone who believes in this basic aspect cannot put across such an argument,” he says.

Beyond social acceptance

But it is not as though queer couples haven’t got married in India thus far. Trans couples can opt for a Civil Union under the Special Marriages Act (1954). There is an arranged gay marriage bureau located in Secunderabad, which helps gay people to find matches. They have successfully helped 21 gay couples to get married. However, these marriages are only customary.

Suresh Ramdas, who won Mr Gay India 2019, weighs in on the benefits of legalising same-sex marriage. “Once it becomes law, then your insurance, bank account, loan account — or whatever it is that the couple wants to do jointly — becomes possible. It will also push for laws that will deal with discrimination and harassment in a queer marriage, so the benefits of this are significant.”

A lot of queer people prefer the term right to companionship, rather than right to marriage. Illustration by Satwik Gade

The push for companionship rights, instead of marriage

A lot of queer people prefer the term 'right to companionship', rather than 'right to marriage'. Queer rights activist Harish Iyer notes, “Marriage is nothing more than a legal document, but the other spousal rights that come with it matter a lot. More than the customary marriage, legal companionship rights are important. Nothing is stopping anyone from having a customary marriage even now, and it has been happening since before Section 377 was read down.”

Sonal Giani, another queer activist, also has similar views. “Personally, I would push for a common-law partnership which is a reality in Canada, where when two people live together for a year, they can legally recognise each other as a common-law partner. But the ground reality is such that people want same-sex marriage rights in India, and that would push religious bodies to also incorporate changes, which is what my dilemma is. People want all the rights that come with marriage, so the law should give people all the options and allow them to choose for themselves," she said.

An inter-religious gay couple, who have been living together in Mumbai for over 15 years now (who wished to not be identified), said, “We worry about our future. What’s ours should rightfully go to the surviving spouse, if anything were to happen to one of us. This is why we want to push for the legalisation of same-sex marriage.”

They acknowledge that if such partnerships have to be called a marriage within existing frameworks, then a lot of reworking is necessary. “There is an archaic approach towards the institution. Marital partnerships have evolved a great deal. This has a lot to do with religion and a person’s caste etc, and the Marriage Act involves several parameters which are primitive. It should just be about the union of two people who have decided to live together for the rest of their lives,” they said.

Arguments opposing the push for legalisation

The most prominent criticism against this campaign for legalisation is that it doesn't top the list of priorities for the queer community in this current moment — a community which is abused and discriminated against every single day. A young queer person from Mumbai (who wished to remain anonymous) said, “Marriage is literally a drop in the ocean of problems that we have, and this is appeasement of gay people. If we do bring this law into motion, everyone will be happy, but what about our trans folks who are fighting against a regressive Trans Rights Bill? We don’t have queer people in our mainstream workplaces or public spaces in general, so focusing on marriage right now will lead to trans erasure. It doesn’t mean that the queer people don’t want to get married, but that’s not a top priority. The more urgent issue is getting job reservations, so queer folk don’t have to beg on the streets."

Trans advocate Swati Bidhan Baruah of the Guwahati High Court is of the opinion that the queer community must flourish and sustain itself before the fight for marriage rights can start. “There is a huge employment crisis. So many people are thrown out of their homes by their parents for coming out as queer, and they need to be provided with shelter. We need to fight for the upliftment of queer people by providing them with opportunities for higher education, and so on. There is no dearth of challenges within the community, and legalising gay marriage is certainly not paramount,” Baruah said.