Same-sex marriage: Urban fad or a question of rights?

The Supreme Court began hearing arguments on a batch of pleas seeking legal validation of same-sex marriages on Tuesday, April 18, a matter it has termed a "very seminal issue". Meanwhile, the Union government’s affidavit stating that same-sex marriage was an urban elitist concept has been slammed by experts and activists. They accused the government and its agencies of turning a blind eye towards the reality of the country.

The Centre told the Supreme Court that the petitions seeking legal validation of same-sex marriage reflect an “urban elitist” view, as the recognition of marriage is a legislative function and the courts should not decide on it. Instead, it should be left to Parliament.

Buttressing this view, the National Commission for Protection of Child Rights (NCPCR) had also moved the Supreme Court against the legalisation of same-sex marriages. The petition claimed that adoption by same-sex parents affects a child both socially and psychologically. Allowing such an adoption is endangering children, contended the NCPCR’s plea.

"Same-sex parents may have a limited exposure to the traditional gender role models and hence, the children's exposure would be limited and their overall personality growth would be affected," the plea stated.

Criticising these opinions, founder and executive director of the Naz Foundation Anjali Gopalan asserted that homosexuality is not limited to urban societies.

“You go to the smallest village and town in this country, you will come across people who are from this community. Unfortunately, the government seems to be noticing only what is happening in larger towns and cities. The government seems to be totally unaware of what is happening in the country. This is a clear indication of the fact that they do not have a finger on the pulse of people,” said Gopalan.

Reinforcing Gopalan’s view, human rights activist Sharif Rangnekar said the government is just trying to find ways to state that it is a phenomenon of the ‘urban elite’. This has been their argument for many things.

"They just want to accuse people of being Westernised so as to cater their vote bank. They should first study the scriptures to understand gender fluidity and sexuality. There is enough in the scriptures that they quote which highlights fluidity and sexuality. It is a hollow defence. They try to assume that we are corrupting traditional values or 'sanskaar'," said Rangnekar.

The former journalist asserted that all Puranas talk about gender fluidity. "Didn't Krishna become a woman? Who is Ardhanarishvara? Isn't Mohini the female avatar of the god Vishnu? People of the third gender are also mentioned. Who was Shikandi?" questioned Rangnekar.

It needs to be understood, underscored Rangnekar, that not very many people from the rural parts of India have access to the high courts and the Supreme Court, so it would be a certain section of the society which would access these courts. "To that extent, you can call those who approached the courts as privileged people. These people have gone to court to fortify the same marriage structure. This means that we are more traditional than they allege against us [sic]," he added.

Though the government wants to formulate laws in this area, many experts believe that this area of sexuality is not something the government should be stepping into because they do not have the capability or the understanding to do so. "What they need to do is listen to people and understand that we are living in a democracy and no one should be left out," added Gopalan.

They both questioned the NCPCR’s stand in the matter too, because the organisation is supposed to look at the well-being of children. "It is really shocking that they would make a statement that there would be a negative, social and psychological impact on children of same-sex couples. Does the NCPCR not know that what children need is a stable and loving environment?" questioned Gopalan.

Both activists pointed out that almost 10 per cent of cases in civil courts are related to family matters and, per Gopalan, some of the "most horrendous cases" are heard, all of which are of those who are in heterosexual relationships. Experts pointed out that using this logic, straight couples should also not be having or adopting children.

The Delhi Commission for Protection of Child Rights, on the other hand, has supported adoption by same-sex couples, stating that parenting depends on the capacity to care, and the quality of the relationship shared between the parents and the child.

Running counter to the government’s narrative is author Ruth Vanita’s book Love’s Rite: Same Sex Marriage in India. She has documented same-sex marriages which have occurred in the country even in the absence of legal recognition. In her book, she has written that the first such marriage in India was reported in 1987 between two policewomen, Leela Namdeo and Urmila Srivastava. Vanita, who had co-founded the feminist journal Manushi, has chronicled instances of such marriages and same-sex joint suicides all through the 1990s.

Most of Vanita’s case studies involve women and a few feature men; none of them had an idea about the LGBTQIA+ movement. Her case studies included factory workers, farm labourers, nurses and fisherwomen from Hindu, Muslim, tribal and Dalit communities.

Vanita underpinned that for most of these couples, family recognition mattered more than government recognition. In most of the recorded cases, families had participated in the wedding ceremonies. However, government recognition was required to access certain rights, especially those of inheritance and insurance.

Fortifying Vanita’s documentation, Rangnekar highlighted that even child marriage and sati were considered aspects of 'sanskaar'. "When the Hindu Marriage Act was amended, there was furore across the country because it denied the Hindu man [the right] to marry multiple women, as many as he wished, without holding any responsibilities for those women or the children produced from those marriages. So essentially women were chattels. That was also 'sanskaar'. With time, traditions also have to change," asserted Rangnekar.