The recent comments of the Solicitor General about the unacceptability of marriage-equality in Indian culture in court proceedings challenging Hindu marriage law attracted great controversy. Unfortunately, the comments distract from the substance of the challenge and need to contextualise it in Indian family law.
Since the decriminalisation of same-sex relationships in 2018, there has been much debate about the future of LGBT+ rights in India. This was natural since the Supreme Court while reading down Section 377 of the Indian Penal Code had held that LGBT+ Indians would be entitled to equal constitutional citizenship, thereby hinting at the future expansion of civil rights.
Developments since, however, have not been promising. The Parliament passed the Transgender Persons (Protection of Rights) Act, 2019, amidst much resistance from the community for disregarding the lived experiences of transgender persons in framing the law and for diluting their right to self-identification. Moreover, while discrimination on grounds of sexual orientation and gender identity is constitutionally impermissible, limited to no efforts have been made to translate these rights into enforceable law.
The marriage question
In this context, some members of the LGBT+ community recently approached the High Court of Delhi in a public interest litigation asking for the recognition of same-sex marriage under the Hindu Marriage Act. This was not the first such challenge, with a gay couple having approached the High Court of Kerala for the recognition of their marriage under the secular Special Marriage Act earlier this year.
Both legislations currently only recognise heterosexual marriages ie marriages within the male-female binary and therefore exclude marriages outside this binary. In recent times while many high courts, by recognising the right to choose a partner, have extended protection to same-sex live-in couples wanting to live with each other, family law frameworks do not recognise such relationships.
Last year the Madras High Court did recognise a marriage between a transwoman and a man under the Hindu Marriage Act arguing that such a marriage would be valid since the transgender person identified as a woman. This reasoning, however, would only be limited to instances where the couple identifies within the binary of male and female. Petitioners before both the High Courts of Delhi and Kerala have now argued that by limiting legal recognition to heterosexual couples, the Hindu Marriage Act and the Special Marriage Act discriminate against LGBT+ persons and disregard their fundamental rights.
There is a strong case to be made for such an argument since the Supreme Court in its pronouncements, on transgender rights and decriminalisation of same-sex relationships, has also given affirmative recognition to LGBT+ person’s fundamental rights to equality and dignity.
Complexity of family law
However, family laws in India represent a far more complex category of laws and the mere recognition of same-sex marriage through a judicial challenge to specific provisions may only translate to limited gains for the community.
Family laws cannot be viewed in terms of marriage rights only. A host of other issues such as succession, parenthood, economic dependency and protection from intimate partner violence become relevant in the context of the state regulation of the family. In India, marriage often becomes an entry point to such rights since the vision of marriage remains central to family law.
Currently, statutory frameworks dealing with succession, parenthood and related matters operate in the male-female binary and assume the heterosexual family as the normative standard. Therefore, even if specific provisions of marriage laws such as the Hindu Marriage Act were to be declared unconstitutional or were to be read to include same-sex marriages, provisions of various other statutory laws would continue to exclude same-sex relationships thereby denying them broader civil rights.
For instance, provisions of the Hindu Succession Act would exclude same-gender spouses since it is premised on the patriarchal Hindu undivided family while laws regulating parenthood such as the Hindu Minority and Guardianship Act would only account for the heteronormative family in determining the guardianship of minors.
Even if one were to base marriage rights in secular legislations such as the Special Marriage Act aspects of religion-based personal laws would continue to be relevant. This is because the secular and religion-based personal law regimes in India remain highly interconnected with aspects of personal law continuing to apply even if individuals opt for a secular law. Therefore, two Hindus marrying under the Special Marriage Act would continue to be governed by provisions of the Hindu Succession Act in matters of succession and other similar religion-based personal laws in matters of parenthood and so on.
Moreover, many provisions of these legislations such as the process of solemnisation of marriage, grounds for divorce, maintenance, and remedies such as restitution of conjugal rights represent, arguably outdated, heterosexual assumptions that may not be easily translatable to same-sex relationships. Many of these frameworks may thus be ill-suited to LGBT+ families in India.
Going beyond marriage
To truly realise the civil rights of LGBT+ persons, the discourse must therefore shift beyond marriage to account for all aspects of state regulation of the family such as succession, parenthood, economic dependency and protection from violence in intimate relationships. This needs to happen both during discussions on family law reform at the community level as well as should get reflected in litigation and law reform strategies.
Viewing marriage as the sole objective of legal reform disregards other intrinsic aspects of family law which are necessary for legal inclusion to be effective. Going beyond marriage equality is therefore necessary to make marriage equality work in practice.
Akshat Agarwal is a Research Fellow at the Vidhi Centre for Legal Policy. Views expressed are personal.