Right to love

With the petition in the Delhi High Court asking that the Special Marriage Act be interpreted in a gender-neutral fashion allowing for the marriage of persons regardless of gender, the issue of same-sex marriage is on the table.

The petitioners have a solid base to build upon in the decriminalisation decision in Navtej Singh Johar, where J Chandrachud surveys the state of international law on the point and observes that there is a ‘dramatic increase in the pace of recognition of fundamental rights for same-sex couples’ and that this ‘reflects a growing consensus towards sexual orientation equality’.

If we take the way US jurisprudence on LGBT equality progressed, in 2003 same-sex intimacy was decriminalised and full marriage equality followed in 2015, just 12 years later. In South Africa, the Supreme Court decriminalised same-sex intimacy in 1999 and in 2006 the Supreme Court recognised a constitutional right to marry for same-sex couples, just seven years later.

Will the Indian courts follow a similar trajectory? In India, marriage is governed by religious laws with the Special Marriage Act being the only secular law which allows persons to marry across lines of religion. The Special Marriage Act is an important recognition that marriage is not just a matter of an arrangement by families and religious communities but really a matter of personal and intimate choice. In fact, the choice individual persons make to marry are valid regardless of the opposition of families, communities and religious communities. This recognition of what can be called the ‘right to love’, in the Special Marriage Act is however imperfect. There is an egregious requirement that the couple who want to get married must first be resident in the place where they intend to get married and must give a notice to the Marriage Officer of their intent to marry and the Marriage Officer will affix the notice in ‘a conspicuous place’ in his office.

This, of course, gives those opposed to the decision to marry, be it family or community to mobilise, oppose, break up and even kill the putative bride and bridegroom. As the violent history of inter-caste and inter-religious marriages in this country has demonstrated, the procedural requirements under the Special Marriage Act have been real impediments to the ‘course of true love’.

The question of course is will this right to love across lines of religion and caste, though imperfectly realised in the Special Marriage Act, now be extended to include lovers between the same genders? To make this right meaningful for all lovers regardless of gender, religion, caste and sexuality, it is essential that the Special Marriage Act is amended to remove its constitutionally offensive procedural requirements.

(The author is a lawyer & writer based in Bengaluru. He is the co-editor of Law like love: Queer perspectives on law.)