In Depth: Petition to Legalise Same Sex Marriage - Who Does it Leave Behind?

A Public Interest Litigation (PIL) was filed for the recognition of same-sex marriage under the Hindu Marriage Act,1955 on September 8. It claimed that Section 5 of the Hindu Marriage Act, 1955 (HMA) did not specify that the marriage must be between a Hindu man and a Hindu woman, but instead refers to marriage between “two Hindus”. The petition has been filed by intersex rights activist Gopi Shankar, founder of lesbian collective Sakhi Giti Thadani, transgender rights activist G Oorvasi and writer Abhijit Iyer Mitra.

While the topic has been discussed in hushed and loud voices, this is the first time a petition was being moved in High Court after Section 377 has been decriminalised. The scrapping of section 377 decriminalised homosexuality but didn't provide any directives for the way forward. The petition demands amendments to the HMA, 1955 and the skewed ideology of the petition was apparent. The issue of marriage legislation has divided the LGBTQIA+ community and has divided people. A petition that ignores the fissures within the community, does not recognise the religious, class or caste divides only further accentuates the widening rift.

Also Read: 5 Judgements that Paved the Way for LGBT Rights in India

The Hindu Marriage Act, 1955 and its Limited Scope

Marriage, divorce, inheritance and succession are governed by personal laws in India. Personally applies to individuals based on religions. Hence, only Hindus can marry under the Hindu Marriage Act, 1955 (HMA). Any amendment to the HMA, 1955 only applies to Hindus. Hindus also includes Sikh, Jains and Buddhists. Similarly, Muslims, Parsis and Christians are governed by their law which determines their rights with regards to marriage, divorce, succession and inheritance. Individuals who wish to opt for a civil marriage, inter-caste or inter-religious marriage can do so with Special Marriages Act, 1954 (SMA). It is a civil law and everyone can register their marriage irrespective of their religion.

In the instant petition of Abhijit Iyer Mitra vs Union of India, the petitioners brought a Public Interest Litigation before the Delhi High Court arguing that Section 5 of Hindu Marriage Act states the conditions for a Hindu marriage is that it should be between “any two Hindus”. Hence, “any two Hindus” can be expanded to include both homosexual and heterosexual marriage unions. The petition also states that the same-sex marriage petition has been “filed for the benefit of homosexual and transgender persons who constitute between five and ten per cent of the country's population”.

These are the two premise on which the petition is based:

• Section 5 of Hindu Marriage Act which states “any two Hindus” which can be expanded to include same-sex marriage
• The universal benefits of same-sex marriage for the entire LGBTQIA+ community

Both these premises of the petition are contested because even if the amendment is made within HMA, 1955 it would still apply to only Hindus. Hence, the claims of universally benefiting the LGBT community who constitute five to ten per cent of the population are unfounded. There is no co-relation of individuals from the LGBTQIA+ community are also Hindus. It is a claim that completely ignores the intersectional nature of the movement.

The petition also ignores recent instances of Transgender men and women solemnising their marriages under HMA, 1955 and SMA, 1954. In a 2019 judgement, Arun Kumar vs Inspector General of Madras the Tamil Nadu High Court expanded the category of the bride to include transgender women. This is not an isolated instance of marriage. Earlier in 2019, a transgender woman Tista married Transgender man Dipan in a wedding ceremony in Calcutta.

The petition does not recognise the intersectional nature of the LGBTQIA+ movement in India. It does address how the community is divided along the lines of privilege, access to resources, caste and class. In such a scenario bringing forth a petition which only benefits members of the LGBTQIA+ community who are Hindus is exclusionary. While the debate regarding marriage rights continues to rage, whether we need a marriage legislation continues to be a looming question. The acid test of any law or policy is to ask two simple questions, who does it benefit and who gets left out?

Also Read: Legalising Same Sex Marriages- is it what the Queer Community wants?

Developments so far

The first hearing for the petition was held on 14 September before the Delhi High Court. The Government of India was represented by Tushar Mehta, Solicitor General of India. The SG opposed the petition on the ground that Indian culture doesn't recognise the concept of same-sex marriages: “These marriages run contrary to the provisions which are already in place in our society. Our values do not recognise a marriage, which is sacrosanct, between two people of same-sex marriage.”

The bench stated that the aggrieved party could have moved the court in their capacity instead of a filing a PIL, and asked the counsel to bring on record all persons whose marriages were not registered on account of being same-sex marriage. The matter will be taken up for hearing on October 21.

Also Read: Gay Couple Moves Kerala HC Seeking Registration Of Same Sex Marriage

Who does same-sex marriage leave behind?

The words same-sex marriage erase trans, non-binary and intersex people. It also curtails those that identify as polyamorous. The language of the petition fails to adopt gender neutrality. Marriage is coupled with social legitimacy in most cultures. Moreover, marriage is also a bundle of rights - right to maintenance, inheritance, protection under domestic violence laws, tax exemptions, surrogacy, adoption and others. Thus, the heterosexual monogamous ideal of family is the centre of all legal frameworks.

Even if queer people are to be granted rights under this framework, it is only to reproduction of heteronormativity. However, queerness has always embraced the rejection of traditional family structures and gender roles. Equality for marriageable queer people does not imply acceptance, but rather an integration into a deeply patriarchal, casteist and heteronormative framework. It is a form of homo-normativity.

Marriage legalisation also widens the gap between 'respectable' and marginalised queer people. A petition is a form of pink washing that subverts a larger queer movement into a nationalistic framework. Various concerns of marginalized queer people from the dehumanising Transgender (Protection of Rights) Bill 2019, the rampant conversion therapy, high rates of suicide and murder within the LGBTQIA+ communities have been sidelined.

Even now there are no anti-discrimination frameworks to protect LGBTQIA+ individuals from harassment and violence in the public and private spheres. It has been criticised by marginalised groups within the community. To portray marriage as the 'priority of the queer struggle' is to represent a minuscule portion of cisgender upper caste and upper-class queer people.

This has been co-written by Anureet and Priyanka Chakrabarty