September 6 is a much celebrated day for the LGBTQIA+ (Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual and others) community of India. It was on this day in the year 2018 that the draconian British-era law, the section 377 of the Indian Penal code that criminalised the same-sex relationships, was read down. It was a major step for a nation like India where conservative norms are prevalent. However, the problems are no less for the community even after the removal of the section 377. Social stigma, unsupportive family and discrimination continue against them. Moreover, the community is facing the absence of any statute that legalises and gives away the rights, privileges and duties in a marriage to the same-sex couples.
There are mainly two facets of marriage—the social celebration of love and commitment and the legal rights and responsibilities that come along in a package with marriage. With the reading down of section 377 of IPC, the same-sex couples can now openly celebrate their love. However, unfortunately, this usually comes at the cost of social frown. Also, the law of the land does not acknowledge these marriages and thus, deprive them of all the basic privileges and civil rights that acknowledged married couple enjoys.
Also Read : Love In The Time Of Section 377
Social Aspects
Marriage as an institution: As rightly pointed out by Arundhati Katju and Menaka Guruswamy (forefront lawyers in Navtej Singh Johar vs. Union of India), “India is a marriage country”. Marriage is widely recognised as the child-bearing and family rearing institution, rather than a loving union of two people. The same-sex marriages are entered into as a symbol of love and commitment. They cannot bear children biologically, and adoption and surrogacy are considered as ‘unnatural’ means of birth by our conservative society. It destabilises the foundation of marriage as the machinery for bearing children and carrying forward the legacy ‘naturally’. Hence, the same-sex unions are often frowned upon by the society.
Family support: I recently interviewed two of my peers from the Rajiv Gandhi National University of Law (RGNUL), Punjab, who belong to LGBTQIA+ community, on the condition of anonymity. They both prefer the pronouns they/their/them. One of them recalls how difficult it is for their family to even talk about homosexuality. They remembered how they tried to initiate a conversation with their sister about LGBTQIA+ community in general and she out rightly denied to even talk about the issue. The other one was successful in coming out to their sister and received love and support in return. They both are not yet comfortable to go to their respective parents.
The incidents of two young students and the cases of thousand others show that the siblings of some might accept them. But we, as family and society, have failed to create loving and safe environment for the LGBTQIA+ community to come out of the closet. According to a study, parents usually accept their queer children on the condition that they disguise themselves as heterosexual in the society. When families do not even approve their sexual orientations, they also fail to lend support to the same-sex unions.
Religious views: The Vedas, the authoritative guiding text of Hindus, mentions the term ‘third gender’, as the persons for whom the sexual acts are not procreative either due to impotency or lack of attraction towards the opposite gender. It directs Hindus that these persons are not to be ostracised and some are even considered to have divine insights. Kama sutra, the Hindu text enclosing information about sexual pleasures, devotes an entire chapter to homosexual sex saying “it is to be engaged in and enjoyed for its own sake as one of the arts”.
The Bible (Leviticus 20:13) in explicit terms says that the both partners engaged in homosexual act are to be punished as it is a capital offence. While the Hindus and Christians talk about homosexual acts, in Islam, the 17th-century Muslim scholar Haskafi, explicitly included “men” in the list of those whom man cannot legally marry. Also, Hadith (equivalent to Quran in Islam) says that man must be punished for his homosexual acts. The reference of lesbian acts, through the verse of indecency in Quran, is not very clear, but some Hadiths warn women against seeing or touching each other when naked.
Different religions in India have different positions on homosexuality and same-sex unions. However, it is said to be brought by the British with them in the colonial period to impart Christian values in Indian culture.
The evidence that is generally put forth in favour of this argument is the statues depicting homosexual acts in Khajuraho temples of Madhya Pradesh. However, no matter what religion they follow, the Indians, due to the draconian British law, have continued to see homosexuality as unnatural, and did not approve same-sex unions.
Social stigma: The law has changed, but unfortunately the society hasn’t. The society has still not come to terms with homosexuality. ‘Disease’, ‘just a phase’, ‘western influence’ are some of the terms that the Indian society uses to disguise homosexuality as something unnatural. In some parts of the country, the families and the social groups of some of the queers, have gone to such lengths that they do not shy away from using corrective measures such as rapes, torture and hypnotism. This social stigma altogether rules out the possibility of socially sanctioned same-sex unions.
Legal aspects
Adoption: There are two legal methods to adopt in India, one by Hindu Adoption and Maintenance Act and the other by a central authority called CARA (Central Adoptive Response Authority), which facilitates the adoption, irrespective of the religion of the parents. The same-sex couples cannot adopt under the ambit of both the options due to non-acknowledgement of their marital status. However, one of the two partners of the same-sex couple can adopt through the single parent adoption policy which has its own pitfalls, like the other parent cannot have any legal rights over the child; the male partner cannot adopt a female child under the rules and regulations of CARA. Also, the rigorous background check of the Potential Adoptive Parents (PAPs) often discloses the nature of their relationship which further discourages the authority to grant adoption to such couples. According to a study by SOS Canada, there are 20 million orphan kids in India, a figure that is suspected to rise by 2021. However, the willing parents from LGBTQIA+ community are still refused adoption.
Maintenance for the financially weaker partner and cases of violence: In the case of Indra Sarma vs. V.K.V.Sarma, 2013, the same-sex couples living in together under a single roof are acknowledged, but the maintenance cannot be granted to the financially weaker partner as the laws governing them, that are section 125 of Criminal Procedure Code of India and Protection of Women from Domestic Violence Act (DV Act), 2005 are gender specific and include terms like wife/woman and husband/man. They fail to accommodate the maintenance and violence issues faced by the same-sex couples. Thus, there is no relief in case of abandoning of one partner by the other or violence inflicted by one partner to the other according to the current laws of the nation.
Compensation in case of death of partner at work and other benefits: Under Workman’s Compensation Act, 1923, in case of death of a person due to injury at work, the dependants of the employee are entitled to receive compensation from the employer. The dependants, according to the law, include a widow, unmarried daughter, minor legitimate son, widowed mother and an infirm son or daughter. As the law of land does not acknowledge the marriage of the same-sex couples, it deprives the partners from the basic financial assistance in case of the death of the other partner at work. But this is not the only statute of the country that provides rights to married couples, which are not enjoyed by same-sex couples due to mere non-acknowledgement of their marriage by the legal framework of India. The Provident Fund Scheme, 1952 and the Payment of Gratuity Act, 1972 define family in such a way that gays and lesbian couples are excluded from the benefits of these laws.
Other basic rights and privileges: There are a lot of other rights and privileges that same-sex couples are devoid of in day to day matters that are enjoyed by heterosexual couples of the society. Benefits like tax-saving on joint filing of Income Tax, financial advantage of owning joint property and joint home loan are just dreams for same-sex couples. While they are devoid of benefits, they are also presented with many problems. It can range from as simple as to problems faced in case of opening joint bank accounts to as serious as nominations in case of insurance policies.
Even the corporate benefits like healthcare policies, travel plans, enjoyed by heterosexual married couples, are refused to gay and lesbian couples.
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Many same-sex couples who are tired of all these homophobic discrimination are compelled to get married in other nations such as the US, the UK, Australia and Canada where same-sex union is celebrated as much as heterosexual ones. Also, as these marriage certificates are not eligible in India, they are pushed to leave the country and settle into more queer-friendly nations. However, this is also not foolproof plan as there are visa problems, employment problems, financial issues among other problems and issues.
Is there any ray of hope?
An openly gay couple has filed a writ-petition in Kerala High Court for the legal acknowledgment of their marriage. If successful, it will be the first same-sex marriage to be recognised in India. The petition asked the court to strike the provisions of the 1953 Special Marriage Act that has legally barred the marriage on constitutional grounds as it violates their fundamental right to equality, equal protection before law, life and liberty and non-discrimination.
Also, the Madras High Court had stated that the term “bride” as per the Hindu Marriage Act would also mean a transsexual and not just refer to someone born as a woman. The bench, which decided the case included Justice GR Swaminathan, who cited Supreme Court’s Judgements and also epics like Mahabharata and Ramayana, said that the term “bride” mentioned in the Hindu Marriage Act cannot be static and the expression will now also include transwomen. While the trans community found hope in this precedence, it would not be wrong to say that the acknowledgement of same-sex marriage is still a dream for queers.
Although the Navtej Singh Johar judgment was a major cause of celebration for a conservative society like India, unfortunately, we have only scratched the surface so far. There is still a lot of stigma and hatred in the society for the community. Both judiciary and legislature can play a huge role in shaping the minds of the nation. Thus, it is high time that the Government of India and judiciary realise the rights of LGBTQIA+ and grants them all the civil rights and respect that are enjoyed by the heterosexual section of the society. The state should not only provide for legal sanction to the same-sex marriages, but it should also amend the existing laws to let them accommodate the LGBTIA+ problems and rights as well. The Kerala writ petition and Madras High Court judgment has made us believe that there is light at end of the tunnel.
(Slider photo credit: @TheQKnit)
