Last week hearings began in the Supreme Court on what has largely been called the ‘same sex marriage’ petition by newsrooms and the general public in India. A five-judge Constitution bench headed by the Chief Justice of India DY Chandrachud began hearing the 20 listed petitions on Tuesday, 18 April.
The Union government has stated its opposition that such unions would create ‘complete havoc’ in the country. It has argued that this demand is an ‘urban elitist concept’, and that marriage is ‘not a fundamental right’, and further contended that the question of what marriage should mean for India, is something to be addressed by the Parliament, not the Court. On Sunday, the Bar Council of India also passed a resolution requesting the SC to leave the issue for legislative consideration and claiming over 99% of Indians are opposed to the idea.
The hearing is the result of a number of petitions challenging provisions of the Hindu Marriage Act, Foreign Marriage Act, and the Special Marriage Act and other marriage laws as unconstitutional on grounds that they deny the queer community marriage equality. To call it ‘same sex marriage’ is to miss the point, and the very grounds of the discussion, multiple queer activists and petitioners in the case told BOOM.
The first thing is that sex and gender are not the same.
“We have moved beyond the whole idea of sex-based characteristics determining what a person will be like, or gender dependent on sex which is rooted in essentialism. So calling it ‘same sex marriage’ doesn’t make any sense,” says Rituparna Borah, one of the petitioners. "We are taking the word ‘equality’ from the Constitution which guarantees ‘samman-ta’ — that all of us are equal," she says.
Deepthi K, a peer-counsellor with Chennai-based Orinam, adds, “The fight is being fought not just for cisgender queer people — there are multiple petitions on behalf of the whole queer community including intersex, and nonbinary people. ‘’Same sex’ marriage sounds very exclusive.” Indeed, what does it mean for people who do not fit neatly into these two rigid brackets of ‘sex’ — a phrasing that in itself is outdated and conflates gender and sexuality?
Jeet, founder of Yes We Exist, a queer advocacy group says, “The term ‘same-sex marriage’ implies that all queer persons are attracted to people exclusively of the same sex which is not true. In my case for instance, I was assigned male [sex] at birth but I am a genderqueer person. And I am pansexual, which means I could fall in love with a person of any gender. So I could marry a man, a woman, a non-binary person, or someone who doesn’t identify strictly with any gender.”
The judgement is a chance to ‘queer’ the definition of family beyond marriage.
Borah who is a founder of Delhi-based Nazariya, a queer feminist resource group, emphasises that as a petitioner, this case is also a crucial opportunity to ‘queer’ the definition of family and bring it up to date with existing realities for India’s queer community. “As a network of LBIT activists we know that familial violence is real and severe, especially for women and trans persons, for whom we are constantly running left and right to get protection orders from the police or the courts,” she says.
Accordingly, Borah's petition seeks to get recognition for chosen families in addition to intimate (romantic) partners through marriage. “Everyone should have the right to marry, but the wife also has the right to divorce her husband in case of violence at the marital home. Do we as queer persons have the right to exit our natal family (family of birth) that has been violent?” she asks.
Queer and trans communities have already formed their own families, with Hijra gharana communities showing the way long ago, Borah says. Their petition draws on the Mental Health Care Act, 2016, which in recognising the ability to select as a Nominated Representative from beyond marital or natal family, sets a benchmark for what is possible.
A number of the petitioners in the case are from the transgender community for whom binary terms like ‘male’ and ‘female’ can be inaccurate.
Activist Dr Akkai Padmashali, who is one such petitioner seeks a declaration that all gender-specific references to ‘husband’, ‘wife’, ‘male’ and ‘female’ in the Special Marriage Act, 1954 be read instead as ‘spouse’ therefore including all individuals irrespective of gender identity, and sexual orientation. “It’s critical to bring the diversity of identities who have stakes in this petition before the public,” she says.
“I am a transgender woman. I have registered my marriage as a female, and adopted a baby as a female. But for many transgender persons, especially from the working-class, it is prohibitively expensive to get gender-affirmative surgical procedures or get their gender or name changed in documentation. Going forward in case of marriage etc this can cause problems,” she says.
“There is a difference between the upper class and the working class and their specific concerns,” notes Padmashali taking the example of two of the petitioners, Kajal and Bhavna, a Dalit woman from Punjab and OBC from Haryana who are a couple, working as an accountant and bakery-assistant respectively. “It is essential to bring this diversity of identities— like intersex persons, jogappa, aravani, kothi — that draw on traditional, culturally specific notions of gender and sexuality— into the discourse before the public,” she says.
It’s important to note here, that nine years after the NALSA judgement the transgender community’s fight for horizontal reservations in education and employment is still ongoing.
Deepthi K, who is 38, has been deeply involved in supporting queer persons in interiors of Tamil Nadu as a peer-counsellor since 2011. “It is mostly Assigned Female At Birth people who face overwhelming pressure to get married. With lesbian women for instance, parents find out about their partner and force them into a wedding with a cis-man,” she explains. In such instances Deepthi provides telephonic support and connects them to spaces which can help with the crisis — whether in running away from violent homes, or seeking legal remedy.
Deepthi reflects, “For me, even if the outcome is not a positive judgement, that this is coming up in the first page of the newspaper every day — that’s a huge thing.”
The implications of altering the Special Marriage Act have stakes beyond queer couples
Per the Special Marriage Act, the notice of intended marriage is to be displayed at the registration offices in respective hometowns or place of residence of the couple, for a period of thirty days. This information is also uploaded on an online portal in many states, like Kerala for instance, and has on multiple occasions led to instances of inter-faith couples being targeted on spurious claims of ‘love jihad’. This provision of 30-day-notice could be struck down (and would also hold true for heterosexual couples).
“A lot of the pleas before the court are to declare that marriage is a fundamental right, irrespective of race, caste, gender or sexuality. For me the ruling of the court is going to be fundamental for all couples who want to marry but do not have sanction from society— whether inter-faith, inter-caste or queer couples,” says Rohin Bhatt, one of the lawyers fighting the case.
They add, “It’s not that all problems are going to disappear if there is a favourable ruling. There will still be vigilante mobs and people being held hostage to forced marriages. But this is a first step towards equality — getting that declaration from the court that yes, we have the right to marry.”
To be honest, all the terms that the debate has been reduced to are inadequate.
These sorts of diverse petitions as we have in India, like Rituparna Borah’s petition that is about transcending patriarchal meanings of what a ‘family’ is, were never heard before even in the courts in the US for instance, lawyer Rohin Bhatt points out.
“So I don’t think that even marriage equality does justice to the actual fight here. But it is the best option that we have.”