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Denying Indians Same Sex Marriage Means Upholding Patriarchal Control Over Our Choice

Posted: March 3, 2021

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The Centre has recently spoken up against same sex marriage, citing a “5000 year old tradition”. It is now to be seen what the Courts say.

Who, being loved, is poor?
~ Oscar Wilde

We live in a country where ‘age-old custom’ means that marriage isn’t a question of choice. People cannot marry for love, but instead are asked to marry for custom, for ritual, for culture – because tradition demands it. There is no opting out. We marry because our community insists we marry. If we are very, very lucky, we get to say yes or no to the specific person we marry.

I read of the three teams of petitioners making their multi-pronged argument for same sex marriage rights, and I am admiring and envious of them. What sort of optimism does it take to bring a petition for your own civil rights to a court of this land? You have to know that you have the law on your side, that you can make a clear argument that the law is on your side, that this clear argument falls on ears willing to listen, and that those listening ears will speak open truths.

Three different requests are before the court right now, to be taken up in April:
~ allow same sex marriage under the Hindu Marriage Act,
~ allow same sex marriage under the Special Marriage Act,
~ recognise same sex marriages that took place in other counties where they are valid.

Requested to respond, our Centre said, our legal recognition of marriage is based on “age-old customs, rituals, practices, cultural ethos and societal values”, which means “We’re not going to change anything at all. Ever.”

The Great Indian Marriage

All of us do not have the privilege to marry by choice; many of us are not so lucky, or so strong, but let me acknowledge that we are seeing more and more men and women who fight for their right to marry, by their own choice, regarding or disregarding caste, class and religion. Sometimes, we get to see a happy ending, a feel-good post on Humans in a Metropolitan City. Sometimes, we don’t.

India has separate laws for marriage depending on your religion – for Hindus, for Muslims, for (Indian) Christians, for Parsis. India does also have the Special Marriage Act, where you can marry between castes, religions, or without reference to your religion at all. The Special Marriage Act is a sort of anomaly, defined as a civil contract rather than a marital rite. It’s progressive – it doesn’t care for religion, caste, class, or anything at all, except the informed consent of the groom and the bride. The Special Marriage Act specifically determines gender for the couple.

Why no acceptance for same sex marriage?

In hopeful, romantic stories, marriage requires consent and participation by both parties. The argument for same sex marriage is based, at its core, on a celebration of mutual love and mutual agreement to be together. But in practice, marriage is imposed upon us – and when we choose it willingly, lovingly, for our happiness, the status quo tells us that is wrong.

We live in a country where it is not only okay, but a legal axiom that ‘a husband cannot rape his wife because his wife does not need to be asked for consent’. Her acceptance is baked into the institution. You can be made to marry your rapist, and you are made to stay married to your rapist. Consent is so far away from these realities as to be laughable.

That is what the Centre needs us to understand, and obey.

A regressive, patriarchal society built on the labour of the oppressed

And this is not just the moral failing of a single political party but rather the entire mainstream understanding of marriage in this country.

We are told that we must marry someone of the opposite gender, preferably within the same religion and caste, and it is only by doing our duty by this tradition that we receive certain civil privileges. We are given authorised channels for an inheritance, protection for unemployed partners (yes, traditionally, women), the sharing of wealth and government benefits between partners, the right to be supported (financially or otherwise) by your partner, adoption, guardianship, the custody of your children – all according to the religion within which you marry.

These liberties are not for our benefit, though. These ‘privileges’ ensure that India maintains a rigorous and violative social apartheid without the risk of global censure.

This is why there exists a legitimate state interest in limiting the legal recognition of marriage to persons of opposite sexes only.” Control wealth, property, and the marital ownership of women and children, and you control the world. We are born into our class, our religion, our caste, and are trained, like small puppies, to stay there.

But we are more than the cis het norm tradition expects us to be

To be homosexual, bisexual, and pansexual, to be asexual or aromantic, to be transgender and worse yet non-binary, we break apart these rules without reference to where in the social cage we are born.

In solution to our revolutionary existence, the Centre harks to Indian cultural ‘ethos’ and implies that same-sex couples are not a part of that ethos: that queer people are essentially disenfranchised from being Indian. In its statement, the Centre says, “Living together as partners and having sexual relationship by same-sex individuals {which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two.”

And here, by making a beautiful connection between marriage and essential humanity, and then denying our access to marriage, the Centre tries to disenfranchise us from being human beings at all.

Legalising same sex marriage a dream stepping stone to other civil liberties

Transgender communities in India have faced this before, in actuality and not just potential.

Our transgender siblings are disenfranchised not generationally but by an act of social will – denied jobs, homes, schooling, and then rendered stateless wherever possible because we elected – in the large majority – a government that does what a traditional India wants – maintain  the hegemony of religion under the guise of progress. If our government wins in April, defining marriage across the board as between ‘biological’ men and women, then we lose even the slim access where trans women could marry men, and trans men could marry women.

Consent, close sister to love and desire, is a proscribed luxury to us, the queer community, and our clarion call to love with consent (romantically, platonically, and with our chosen families) blares defiance to traditional rules. Our loves are a legacy to the children of our hearts, the queer descendants who will come – even if that legacy right now is refused recognition.

With queer marriage, not just same-sex marriage but marriage that does not regulate gender, we might open a door to other civil liberties, to be not just safe from jail but to be safe to be validly, and happily, a part of this nation, sanctifying a new ethos of agency and happiness that does not yet exist.

Image source: YouTube

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Rohini Malur is a writer based on Bengaluru. She is a founding member of All

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