Time to allow same-sex marriage

In a recent move, the Delhi High Court was approached for granting marriage rights to LGBTQ+ people. This was opposed by the Central government through Solicitor General Tushar Mehta who remarked that both Indian law and culture do not recognise the concept of same-sex marriages.

There is rich Indian literature on homosexual people and some arguments to show that same-sex marriage is not opposed per se. In fact, the law itself has laid down foundations of such claim by LGBTQ+ people. I shall also explore possible opposition to same-sex marriage and offer a counter.

The SG has submitted before the Delhi HC that the law recognises only husband and wife and instantiates with the potential problem in cases of cruelty to wife under Section 498A of the IPC. It is notable that the Special Marriage Act uses the gender and sexual orientation-neutral term, that is, spouse. The Section 498A cases are also registered for couples married under the Special Marriage Act. Hence, the same-sex couple could be allowed to marry under the Special Marriage Act and then all rights and duties be granted to them in a gender and sexual orientation-neutral manner.

The arguments of Mehta on tradition also do not hold ground. In this regard, it is important to trace the historical origins of marriage and literature of same-sex people in India. It is noteworthy that the state control of marriage is rather a Victorian phenomenon. Around 13th century, the Church would perform marriages which was later taken over by the state in Europe including the British who carried this to India. Since the British started administering laws in India, they also brought homophobia with them, excluding same-sex people in marriage registration.

It must be noted that in Indian history, homophobia is a recent phenomenon and a product of colonial rule. Prior to colonisation by the British, the queer community was recognised in the society. This evident from the fact that Sanskrit has a pronoun for the third gender and same-sex came to be penalised only during the British Rule. As Ruth Vanita notes, Indian men were often criticised by the British for not being masculine and being coward.

Queer people in this regard were seen as even more unmanly. Therefore, in an attempt to ward off such criticism coupled with the ongoing nationalist movement to reclaim Indian superiority over the West in terms of morals and tradition, queer people were pushed to the sideline. They were then abhorred because of such a change. Hence, there has never been religious opposition to queer people.

Ruth Vanita has noted some favourable position for the same-sex marriage. As she notes, one Hindu scholar, Pandit Shailendra Shri Sheshnarayan Ji Vaidyaka has opined that Hindu philosophy as such is not opposed to gay people.

When he was questioned on same-sex marriage at the 2004 Kumbh Mela by a reporter of Hinduism Today, he said, “Whatever is done in a hidden manner becomes a wrong act and is treated as a sin. Whatever is done openly does invite criticism for some time but ultimately gains acceptance. Why not give them the liberty to live in their own way, if they are going to do it anyway? After all, we have kinnars, eunuchs, who have been accepted by the society. Similarly, these people can also be accepted. Like we have a kinnar-samaj, eunuch society, we can have a gay samaj.”

No taboo

From this discussion, it is abundantly clear that same-sex couple was neither a taboo nor stigma under Hindu philosophy and possible as well, as discussed by Pandit Vaidyaka. In fact, distortions against queer people are a result of the colonial rule. Interestingly, the United Kingdom which introduced these laws in India, now allows same-sex marriage. Many progressive nations across the globe also allow for same-sex marriage.

Some sections of the society also oppose same-sex marriage on the ground that such marriages are not capable of producing children and the only sex permissible in marriage is procreative sex. This opposition, however, is unfounded. Several married couples across religions are not capable of procreation and in that sense, marital intercourse between them cannot be faulted for, on the grounds of only one permissible sex - procreative.

In fact, the law freely allows for such marriage. Even inability to reproduce is not a ground for divorce. Also, it is out of deep respect for marriage that same-sex people want to marry. This reasoning has been upheld by the US Supreme Court in the famous case of Obergefell v Hodges, Director, Ohio Department of Health.

Hence, it is amply clear that neither the tradition nor the law opposes same-sex marriage. Rather, they provide grounds for same-sex marriage. While this entire topic is debated, it must be borne in mind that constitutional morality must be adopted.

Constitutional morality dictates that the state must take steps to be as inclusive as possible. To deny same-sex marriage would be to discriminate queer people on the grounds of sexual orientation which is impermissible in law.

Recently, the Supreme Court in Navtej Johar v Union of India held that the state must take steps against discrimination of queer people and steps should be taken to include them within the societal fold to make a more inclusive society. Therefore, same-sex people must be allowed to marry without any prejudice against them.

(The writer is a student at Keshav Mahavidyalaya, Delhi University)