A five-judge bench of the Supreme Court is set to hear the petitions on April 18, 2023.
To Rituparna, the pearl-white mekhela chador is a thing of beauty. Its silken ebbs flow seamlessly into the golden guna and white thread work on the borders. Her young eyes first spotted this sarong, a sartorial staple in her village in Assam,in her mother’s cupboard. Someday soon, Rituparna thought, it would be her turn too.
Almost three decades later, Rituparna is mulling the same question. Except, the desire now has a specificity: Amrita, her partner of four years. For all intents and purposes, they are married: they live together, have a joint bank account, and are parents to three beautiful cats. But the chador drapes her imagination—her, in the luminous mekhela chador, standing next to Amrita.
“Marriage just feels so important, doesn’t it?” she says, with an amused smile. “We get to celebrate ourselves, the people we love.” As Rituparna anxiously wonders if she and Amrita will get to see that day, some 20 petitions sit before the Supreme Court, asking for the legal right to marry a partner of the same sex.
A five-judge bench will hear the petitions on April 18, 2023, five years after the Supreme Court decriminalised sexual relations between people of the same sex by striking down Section 377 of the Indian Penal Code (IPC) in the historic Navtej Singh Johar vs Union of India judgment. If same-sex marriage is legalised, India will become the second Asian country after Taiwan and the 35th in the world to do so.
One of the petitions is Rituparna’s, whose plea argues that people have the right to “choose” and form families. Another petition, by Utkarsh Saxena and Ananya Kotia, who have been together for almost 15 years now, urges for a broader interpretation of marriage while spotlighting the gaps that leave same-sex couples vulnerable to “ostracism, persecution and violence”.
The legal fight to expand marriage rights is not defined by one individual, one community, or even one demand only. The voices come from different locations: some attacking legal provisions and others foregrounding the ways in which the social and legal systems are designed only for heterosexual couples. For each, marriage flickers like a moth in a jar, alight with the promise of choice and acceptance.
The view of the state
The Union government filed a petition on March 12 before the Supreme Court opposing these voices. The arguments resembled the ones it had previously made before the Delhi High Court in 2021, and also those made in other countries.
One, that marriage can happen only between a biological man and a biological woman, and changing that will cause “complete havoc with the delicate balance of personal laws in the country and in accepted societal values”. Marriage is a “sacrament, a holy union and a sanskar”, it noted in the petition.
To Madhavi Menon, a professor at Ashoka University, “these are the same arguments that are used to not criminalise marital rape—it’s all about Indian values and the sanctity of marriage. On the one hand, people claim that marriage is the most stable of institutions. On the other hand, they claim it’s so fragile that it needs to be protected.”
WHERE INDIA STANDS
Ruth Vanita, author and academic, spoke of how the government fails to notice that “there has been no ‘social havoc’ in the 31 countries where same-sex marriages are now legally recognised”.
Two, the government has questioned the legal mandate of the judiciary in the present case, stating that “granting recognition and conferring rights recognising human relations which has its consequences in law, and privileges is, in essence, a legislative function and can never be the subject matter of judicial adjudication”.
This is a tired argument, according to Utkarsh, who has been an advocate before the Supreme Court. He appeared in Justice Puttuswamy vs Union of India, a 2017 case that identified the fundamental right to privacy in the Constitution and became the bedrock of the judgment in Navtej Johar and the current batch of petitions seeking legality for same-sex marriage.
He said: “We are a constitutional republic. Any statutory provision, if in violation of provisions of the Constitution, has to be struck down, and the only forum that can make a decision on whether it is constitutional law is the Supreme Court. It is then upon the aggrieved members of society, the victims of the current marriage regime, to go to court and say the laws as they stand today are violative of the Constitution, and therefore the court is absolutely the right forum for this case.”
The third argument avers that the legal system’s architecture is limited in its application, in that all current statutes assume “husband” to mean a biological man and “wife” a biological woman. And any other “creative” interpretation will render statutory provisions “unworkable”.
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Some petitions contest this claim, noting that the Hindu Marriage Act validates marriages between “any two Hindus” and can thus be read as being gender-neutral. Arguably, other countries have wrestled with the same challenges: Taiwan, for instance, gave time to the legislature to amend marriage or adoption laws in such a way that they were available to people of every gender.
Utkarsh pointed out that these were artificial limitations, and just “because the work ahead is complicated, it doesn’t mean that you don’t fight to uphold fundamental rights”.
What do the petitions argue?
The petitions before the Supreme Court lay a fundamental claim to equal rights. Equal opportunity is built into the framework of the Constitution: the crux of the argument is that if the government chooses to extend certain rights to heterosexual people, then it has to extend them to other groups of people too. Chayanika Shah, an activist and Rituparna’s co-petitioner, said: “There is a right for anyone to get married, and this right cannot be denied to anyone.”
As for the argument that the legal architecture is not designed to accommodate same-sex marriage, the petitions say that marriage in India happens in one of two ways: under personal, faith-based laws such as the Hindu Marriage Act and the Muslim Marriage Act, which are governed by a certain set of traditions and customs; and under the Special Marriage Act and the Foreign Marriage Act, both secular laws “for all those marriages that don’t find a home within the faith-based marriage rules”, as Utkarsh said. He added: “The purpose of the Special Marriage Act is that those couples or people who cannot be a part of faith-based marriages have this option, and our argument is that we fit exactly in that case.”
Petitions like those of Utkarsh and Rituparna go a step further to argue that a gender-neutral reading of the law is only a formalistic change; what is needed is a revamp of the Special Marriage Act provisions. Marriage under the Special Marriage Act is a very public process: couples have to publish their intention to get married in a district office with a 30-day notice, and provide names and photos. Couples also need a domicile certificate to show they are residents of a particular place.
In faith-based marriages, one can go to a religious site of worship, like a temple or a church, and get married within an hour. Under the Special Marriage Act, the 30-day notice and domicile provisions become hurdles for vulnerable people and minorities.
“Although the right to marry under the Special Marriage Act exists for interfaith couples, the prior notice and objection requirements have made access to that right illusory,” the petitions state.
Thus, part of the argument is that just like there is no requirement for advance notice of marriage in Hindu or Christian marriage law, the court should strike down these provisions in the Special Marriage Act as well.
“We are not asking for anything special or unique. We are just asking for access to exactly the same set of rights that others have already,” Utkarsh said.
In her book Love’s Rite, Ruth Vanita looks at press reports documenting the attempts made by many same-sex couples to marry, including Dalits, tribals, fisherwomen, agricultural labourers, factory workers, teachers, and nurses.
In 1993, Vinoda and Rekha went to the local Registrar of Marriages asking for their marriage to be registered. In 2005, Nitima Baruwa and Laxmi Bari, two tribal girls, got married in their village in Jharkhand. Their families and community, after initial disapproval, accepted and celebrated the marriage. Those who never received acceptance, like Jayanta and Swapna in West Bengal in 2007, consumed poison together, leaving behind a suicide note asking to be buried together.
“These suicides and weddings have been reported in the press since 1980, much before there was marriage equality anywhere in the world, and when there was barely a gay movement in India,” said Ruth Vanita. “These couples had no contact with any movement and did not use any identity terms. They simply expressed their love and their intense wish to marry each other.”
The discourse around the legal right to marry is often divided into pre- and post-Section 377 phases. But the movement is much larger, stretches further, and includes people from a wide social and economic radius.
Marriage equality in queer rights movement
Within the queer rights movement, however, marriage equality is located on treacherous grounds. Naturally, queer and women’s rights activists have examined the value of partaking in what they believe is a patriarchal, privileged, and casteist institution.
Ruchika, 30, personally believes marriage to be a futile battle. “I do not care for marriage equality.” As a bisexual woman, she does “not care for validation from the government or the state on how I lead my life and how I love”. Madhavi Menon agrees: “We should be trying to fight for far more egalitarian and progressive ways of living in the world rather than trying to hitch our wagon to something that is so broken.”
This is perhaps why Chayanika, a member of LABIA, a queer feminist collective, did not immediately intervene when the petitions were started. She attests to feeling a sense of conflict. Rituparna expressed a similar hesitation, saying the petitions were initially filed by “upper-class gay men” with visible social privileges and were not entirely representative of the concerns of queer women and trans persons.
However, over the years, several same-sex and heterosexual couples on the run have approached advocacy groups like Nazariya and LABIA; for them, “marriage” was the only language they had to express the desire to live with each other. Marriage is a manifestation of patriarchy but it is also a means to social acceptance, according to them.
Also, in principle the argument of the petitions appears sound: if marriage is available for some people in this country, it should be available for all people. Whether people choose to exercise this choice is an entirely different matter. Utkarsh and Ananya sometimes laugh about the prospect of marriage; they are not quite sure if it is for them.
“Same-sex couples don’t marry because they want to live together, be acknowledged as a couple by friends and family, and lay claim to everyday rights that cross-sex couples take for granted,” said Ruth Vanita.
Shamaine Rebello, 43, was earlier against the institution of marriage. But in early 2013, when she tried to add her partner as a nominee in a bank account, the officials refused because her partner was not related by blood. That is when Shamaine and her partner began to see marriage as a safety net, something that she said “would protect me from being discriminated against, something that would make my relationship legal, and protect my partner and me from being separated.”
Marriage also comes with a bundle of other rights, such as inheritance, rights of property and assets, and adoption rights. Even mundane things like filing joint taxes or opening a joint bank account become easier. If one partner falls ill, the other cannot make medical decisions without marriage. They cannot be included in their partner’s medical insurance or get pension as a widow or demand for rights in a divorce.
Violence and harassment
Rituparna and Chayanika’s joint petition represents another concern: the violence and harassment that natal families inflict. Rituparna’s organisation dealt with the case of a woman in Delhi who was earlier in an abusive marriage and had three children. Now in her 30s, the woman wanted to live with her lover from school, a transmasculine person. “We went to the police for a protection order, but the police said: ‘Aren’t you ashamed? You have three children’.” The woman was later kidnapped by her parents and locked up in a village hut. “She didn’t even know where she was,” Rituparna said. Later, the court ruled that the woman was an adult and had every right to live with a partner of her choosing.
Such cases are not rare. In 2018, for instance, a lesbian couple sought police protection because they wanted to live together but feared violence from their families.
For Chayanika, the petition asks the state to commit to protecting a person from their blood family or family by marriage. She said: “We are coming to the court because we deserve equality and because we deserve protection from violence.” Marriage becomes a shield that protects an individual from familial violence.
ACTS THAT COVER INDIA’S MARRIAGE LAWS
Another aspect is that of claiming the “right to choose” a family itself. Families are constructed either by birth, marriage, or adoption—but these are all limited ways of thinking about relationships. The petition argues that everybody has a right to choose how and who will make their families.
Even international legal frameworks, such as the Yogyakarta Principles that speak of human rights in sexual orientation and gender identity, recognise the right to form a family. Rituparna said: “That is why this petition is special: it talks about and documents how queer lives are.”
The right to form families assumes that there are multiple ways in which people live, and that all of them must be recognised as legitimate.
For many activists, petitioners, and individuals, marriage rights do not symbolise a conclusive victory. They are a means to an end, being inextricably linked to issues such as access to healthcare, food and nutrition security, discrimination at work and education spaces, institutional violence, and prejudices.
A 2021 survey of 1,700 students in colleges across the country said that 64 per cent of LGBTQ+ students faced discrimination. Trans people are still fighting for horizontal reservation in public education and employment, nine years after the historic National Legal Services Authority (NALSA) judgment that recognised transgender persons as belonging to a third gender.
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Beyond questions of gender, sexuality and identity, experts said that there was “homophobia and misogyny” in the state’s opposition, which must to be questioned. When the government says that marriage is limited to a “biological man and biological woman”, Chayanika believes that it is an articulation of an ideology that promotes purity of caste, religion, community, and procreative relationships.
She said: “Reading down Section 377 made more people confident to claim their right. . . . Similarly, if there is a judicial announcement that marriage can be between any two persons, that will give me strength to carry on with my fight.”
Histories in the making
Utkarsh and Ananya’s relationship was secretive and quiet for the most part, never publicised on social media. Suddenly, after they filed the Supreme Court petitions, it was all over the Internet. “It’s a bit taxing to put ourselves out there for people to ask us our personal stories again and again—it takes a toll on you.” As they came out to their families, their families in turn came out in their social circles. Utkarsh’s father now routinely has conversations about gender and rights with friends and colleagues.
Utkarsh did face a fair amount of trolling, but it could not silence him into submission. If anything, it made the petition the logical next step. “We didn’t have any role models when we were younger. . . . It was incredibly depressing to not see anybody out there in a stable relationship that we could aspire to. This work will hopefully help kids out there with a story to look forward to; give them something to hold on to that we didn’t have,” Utkarsh said.
Rituparna finds herself falling back on four things: therapy, friends, her cats, and Amrita. “I can talk to her about everything. . . .she understands who I am. More importantly, she’s the one who is family.”