In response to petitions filed demanding the legalization of same-sex marriage in India, the Centre instructed the Delhi High Court to reject the petition. This was in keeping with the “traditional ethos of India’’ that defined marriage as a union between a man and a woman with the intention of procreating and having a family. Through its unwavering attitude and actions, the government continues to erase and eliminate the identities of LGBTQIA+ people. Despite the decriminalization of homosexuality by the Supreme Court, the LGBTQIA+ community are incessantly denied their basic rights, under the garb of tradition.
The existence of the “Unnatural Sexual Offences” i.e. Section 377 of the Indian Penal Code effectively punishes consensual sex between two adults engaging in non peno-vaginal sexual activity; the section categorizes consensual homosexual intercourse with bestiality and sexual relations with minors which are criminal offences. Currently, there are no laws to protect the rights of the LGBTQIA+ community against the continuous discrimination and dehumanization faced.
Though the personal laws governing the different factions of a person’s life like marriage, legitimacy of children, adoption, divorce are important and help navigate the interactions of people, they cannot surpass the Constitution of India. Article 21 of the Indian Constitution recognizes the fundamental right of the Right to Life, which further recognizes the right to marry and the right to live with dignity. Additionally, the right to marry has been recognized under the Universal Declaration of Human Rights of 1948 as, between “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family.” given that the “marriage shall be entered into only with the free and full consent of the intending spouses”. The focal point is the usage of the phrase, “men and women”, which does not specify anywhere that one man is to marry one woman. It also specifies that marriage has to be completely consensual between the involved parties. Therefore, if a gay or lesbian person is forced to commit to heterosexual marriage for the sake of “normalcy” or “family honor”, then the consent given is not truly free or complete, thus violating the Universal Declaration of Human Rights.
Since India is a Hindu majority country, it would be an oversight to ignore the Hindu Marriage Act of 1955. The section which defines the conditions of a valid marriage (Section 5), does not explicitly define it as between a man and a woman. It begins with the phrase “between two Hindus” which automatically leaves room for interpretation. The act continues to list the important conditions for marriage such as no living spouse at the time of marriage, both parties should be capable of consent, and that the age of the groom and bride shall be 21 and 18, respectively. Literally interpreted, the section does not bring focus to the necessity of marriage between one man and one woman. It only insists on two conditions being fulfilled that 1) the parties should be Hindu and 2) should be of legal age for marriage (though people still flout the age necessity and continue to practice child marriage).
The Centre dismissed the proposal for legalization of same-sex marriage by insisting that “marriage depends on age-old customs, rituals, practices, cultural ethos and societal values”. Living together and maintaining sexual relations with a same-sex individual apparently does not fit into the idea of an Indian Family Unit and cannot uphold the true essence of a union as scripted in ancient Hindu texts.
What is interesting to note here is the definition of “culture” and “tradition” that the Centre subscribes to. The current state power has adopted a particular narrative of “tradition” that propagates the ideology of a “Hindu Rashtra” and keeps trying to rebirth the “glorious past”. Which raises a crucial question as to what past is actually being referred to? The idea of “tradition” being pushed now is a direct result of the remnants of colonialism that contrasts the true essence of the original Hindu tradition. The concepts of homosexuality, same-sex unions, and non-binary or androgynous personalities were not alien to Hindu tradition. Their existence was elemental to the very facet of Hindu mythology where there is no dearth of queer personalities and accounts of alternative sexual choices. The third sex finds several mentions in the Vedas, as people who lack a desire for the opposite sex and were never ostracized for it. Instead, they are perceived to wield divine powers.
Homosexuality, literally or metaphorically, has always been a part of Hindu mythology which forms the core of Indian tradition. Unlike the West that posits its world-views in binaries, Indian tradition has always focused on the ideas of non-dualism and oneness. Then why has homosexuality come to be viewed with such disgust by the upholders of the same tradition?
One of the major arguments against same-sex marriage is that such unions will not beget children, which would violate the tenets of the Indian Family Unit that is believed to comprise of husband, wife, and children.
The attitude towards sexual relationships was completely transformed after the colonial advent when the colonizers implemented the Anti-Sodomy law to regulate “barbaric” practices. This carried on to the post-colonial era as the nationalist class imbibed Victorian ideals of morality and rejected the indigenous traditions by upholding the same ethos. Homophobia is thus an imported concept. Sadly, the narrative has been twisted such that homosexuality today has come to be perceived as a western import, the result of westernization that staunchly opposes the current political regime’s ideology.
One of the major arguments against same-sex marriage is that such unions will not beget children, which would violate the tenets of the Indian Family Unit that is believed to comprise of husband, wife, and children. However, there is no legal impediment barring infertile heterosexual people from getting married. Rather, they can seek other options in the form of medical treatment, assistive reproductive technology, or even adoption which can be opened to same-sex couples for their need of a “family”. We also find such examples of alternative modes of having children in Indian myths, like Janaka, who had adopted Sita. Gods and Goddesses of Indian mythology always manifest in pairs that are not always heteronormative. Just like Shiva appears with Parvati, he also pairs with Vishnu and even begets a son, Ayyappa, born out of his union with Mohini, the female avatar of Vishnu.
To sum up, the Hindu Marriage Act technically does not make marriage exclusively between one man and one woman. It protects the right to marry under the Constitution of India, and the Supreme Court in 2018 itself held a person the right to marry a person of their choice along with decriminalizing homosexuality. Regrettably, due to conservative thoughts and repetitive practice, marriage has been interpreted as only between one man and one woman and any other forms of union are rejected.
Comments