Big weddings are India's national obsession. From Bollywood movies to now Netflix series, the pomp and splendour of Indian weddings have always been front and centrestage in popular culture. But the country's LGBTQIA+ population is still deprived of this fundamental right - the right to legally marry a person of one's choice.
It was not so long ago when ‘Seema Taparia’ dived into the universe of grand wedding celebrations, giving the world a glimpse into what goes inside outrageously lavish Indian weddings, in the Netflix original show Indian Matchmaking.
Netflix's newest series The Big Day takes the audiences on a journey into the wedding festivities of six couples. The series is divided into three episodes and focuses mainly on couples from Indian upper-class background. While many may argue and debate over the fact that these Indian shows set up a parochial view about marriage and the sumptuous amount of money spent, it is undeniable that the show has managed to stand apart from the rest.
This show will also undoubtedly go down in history as the first series to air an Indian gay wedding. Episode three of the series focuses on gay couple Tyrone Braganza and Daniel Bauer. With Bollywood actress Katrina Kaif as an attendee, the show has already invited lots of attention. The show must be lauded for the diversity it brought along by including a same-sex marriage to Indian screens. But one hoped that the episode showed that for other Indian gay couples, a wedding is not a reality.
India does not recognise same-sex marriages. Earlier this week, the Indian government made that clear in its affidavit in the Delhi high court in response to petitions seeking recognition of same-sex weddings, when it said that under the country's laws, marriage was between "a biological man and a biological woman" and that there was no fundamental right of same-sex marriage.
To know more about the legal aspect of gay marriages, we spoke to legal expert, advocate Suraj Sanap, a Research Consultant with the Centre for Health Equity, Law and Policy (C-HELP).
Marriage (and divorce, maintenance, alimony etc.) are governed by various Parliamentary laws in India. The Special Marriage Act, 1954 (‘SMA’) is the only civil law that governs marriages in India irrespective of caste or religion.
There are community-specific laws on marriage and divorce - Hindu Marriage Act, Parsi Marriage and Divorce Act, Indian Christian Marriage Act and Indian Divorce Act, Muslim Personal Law (Shariat) Application Act and Dissolution of Muslim Marriages Act.
While no definition of ‘marriage’ exists under any of the aforesaid laws, based on the scheme of the law under both civil and personal/religious laws, presently only heterosexual couples have the right to marry. This is because all laws only recognize a union between a ‘male/bridegroom’ and ‘female/bride’ explicitly or implicitly.
The Supreme Court decision in Navtej Singh Johar v. Union of India recognizes the fundamental rights of lesbian, gay, bisexual, transgender, queer and intersex persons under Article 14 (equality), Article 15 (freedom from discrimination), Article 19 (freedom of speech and expression) and Article 21 (right to life and liberty) under the Constitution of India. However, Navtej does not explicitly recognize the right to marry for LGBTQI persons in India, as it was only limited to the issue of decriminalization of sex between consenting adults in private.
In April 2019, the Madras High Court in the case of Arunkumar and Anr. v Inspector General of Registration & Ors. declared the expression ‘bride’ under the Hindu Marriage Act, 1956, to mean and include a transwoman and an intersex person identifying as a woman, thereby interpreting the law to allow the performance of marriages involving trans persons.
Currently, the High Courts of Kerala and Delhi are dealing with constitutional challenges to the various marriage laws to recognize the right to marry for all members of the queer community.
I will firstly argue that as queer people, activists and lawyers, we must fundamentally challenge the idea of marriage as a “sacred” institution. It is precisely the “sacred” notions associated with marriage in India that perpetuate caste, class and gender-based privileges of dominant communities in India, as they discriminate against and exclude queer people, women, Muslims and Dalits under the law.
Any long-term relationship, including marriage, involves intimate commitment as well as the legal rights and duties of partners. Basic rights relating to healthcare, housing, property/inheritance and custody of children, among others, are mediated by the marital status of parties, based on the principle of providing care and support for each other.
However, at present, people in live-in relationships do not enjoy equal rights as married couples. For instance, only legally married couples are permitted to transfer rental property (under a lease) or self-owned property in the interest of their partner/spouse, whereas couples in live-in relationships do not enjoy the same rights under Indian law.
Queer persons are further at risk of forced evictions due to the non-recognition of their relationships under the law. Therefore, depending on the social and economic needs, partners may choose to marry for access to a spectrum of institutional benefits.
As a vast majority of the apparatus of marriage is rooted in everyday social and economic struggles of the queer community (as well as for other marginalized communities), we must demand that rights relating to marriage be determined under the constitutional framework, and not based on “sacred” or unreasonable standards of personal/religious law.
The Hindu Adoption and Maintenance Act, 1956 (‘HAMA’) is the only community-specific law that expressly recognizes adoption in law, and governs the field on maintenance, rights and responsibilities that are attached to adopted children. The law clarifies that both Hindu men and women, irrespective of marital status, who are of sound mind and the age of majority, possess the capacity to seek adoption.
Additionally, the Central Adoption Resource Agency (‘CARA') and Juvenile Justice (Care and Protection) Act, 2015 (‘JJ Act’) provide access to adoption for Christian, Muslim and Parsi communities.
In terms of eligibility criteria under the general law, the JJ Act provides that prospective adoptive parents must be physically fit, financially sound, mentally alert and highly motivated for providing a good upbringing to a child. Single or divorced persons can adopt, subject to fulfilment of additional requirements under the Adoption Regulations, 2017 under CARA.
The CARA Regulations state that the best interests of the child’ shall be a fundamental principle governing any adoption placement. Any prospective adoptive parents, irrespective of marital status, can adopt a child. However, no child shall be given in adoption to a ‘couple’ unless they have at least two years of stable marital relationship’.
The Assisted Reproductive Technology (Regulation) Bill, 2020 (‘ART Bill’) is under deliberation by Parliament at present, aimed at regulating assisted reproductive technology services and those offering such services. The ART Bill defines a “commissioning couple” as an ‘infertile married couple’ who seeks ART services. “Infertility” is understood as the inability to conceive after one year of unprotected sexual intercourse or due to other proven medical conditions preventing a couple from conception.
The Surrogacy (Regulation) Bill, 2020 is also currently under consideration of the Parliament for the regulation of the practice of surrogacy. This bill defines an “intending couple” to mean a legally married Indian man and woman above the legal age of marriage, who are certified to be infertile and who intend to become parents through surrogacy.
These laws only contemplate married, heterosexual couples as beneficiaries, since the criteria of infertility under both Bills is based on the hetero-normative stereotype of sexuality and child-bearing of vaginal-penile intercourse.
Rather than ‘gender neutrality’, the preferred legal strategy for inclusion is to make existing and prospective laws recognize the social and economic rights of queer people in appropriate contexts.
For instance, in August 2020 the Orissa High Court in the case of Chinmayee Jena @ Sonu Krishna Jena v. the State of Odisha declared for the first time that a woman in a relationship with a trans man is entitled to rights under the Protection of Women from Domestic Violence Act, 2005 (‘DV Act’).
By recognizing queer relationships as meriting protection of the law, progressive decisions like these have the potential for lesbian, bisexual, transgender, queer and intersex women who are survivors of gender-based violence (GBV) to access appropriate remedies under the DV Act, including protection from violence, right to residence, monetary compensation, medical treatment and other support services.
On the other hand, over-simplified strategies of proposing ‘gender neutrality’ in-laws like the DV Act are flawed as our laws must reflect the existing status of gender inequality and related concerns like the disproportionate impact of gender-based violence against women, and offer access to justice based on such lived realities in any society.
Another challenge in seeking ‘inclusive’ laws is that we must also cautiously negotiate the terms of inclusion in appropriate contexts. For instance, the Surrogacy Bill is criticized by feminist and public health groups for limiting the scope of women who can serve as surrogates on basis of a ‘close relation’ to the intending couple, as contributing to vulnerability and harm against women in patriarchal and exploitative families.
Women who perform the labour of surrogacy and feminist groups have also challenged the prohibition of commercial surrogacy under the present Bill and demand adequate compensation, in recognition of limited economic opportunities available for women from socially and economically marginalized backgrounds who largely engage in surrogacy.
Therefore, as a constituency seeking inclusion under the proposed laws, the queer community must challenge the criminalization of commercial surrogacy and support demands of women in surrogacy who seek adequate safeguards to protect health and security under a regulatory model to secure their social and economic rights in law, to mitigate harm against other marginalized communities and ensure an equitable contractual relationship for all concerned parties.
Firstly, as community members, activists and lawyers, we must reassess the priority of ‘marriage equality’, and re-focus our resources and activism based on the lived realities of the most vulnerable in the community for basic rights to food security, affordable healthcare, adequate housing and related law and policy issues.
We must centre issues of social and economic justice in queer activism in India as they are indispensable for the transformation of our communities, beyond seeking only ‘marriage equality’.
We are tasked with the responsibility to seek enforcement of the fundamental right to reservation in public education and employment for the transgender community, challenging the criminalization of queer lives under anti-begging and anti-sex work laws, universalization of social security and making healthcare systems responsive to general as well as sexual and reproductive health rights of queer and intersex persons, among others.