An equal union

When the Supreme Court read down Section 377 of the Indian Penal Code in 2018, it seemed that decriminalisation of same-sex intimacies would be quickly followed by the legal recognition of same-sex marriages. This aspiration for marriage equality is also reflected in Hitesh Kewalya’s film Shubh Mangal Zyada Saavdhan (2020). Aman Tripathi, who wants to marry Kartik Singh, tells the family priest, “According to the scriptures, marriage is a union of two souls, right? Do souls have a gender?”

Since the priest refuses to conduct the wedding rituals, these gay lovers walk around the ceremonial fire singing the song “Yeh Dosti Hum Nahin Todenge” from Ramesh Sippy’s film Sholay (1975). Given that law and religion are not ready to dignify their relationship with a name, they seek refuge in the broad embrace of friendship. Tripathi says, “Mummy, get ready for this! A wedding of this kind will be more common in the coming years.”

This dream could soon become a reality. The Delhi High Court is hearing three petitions seeking the recognition of same-sex marriages under the Hindu Marriage Act (HMA), the Special Marriage Act (SMA), and the Foreign Marriage Act (FMA). The HMA petition has been filed by Abhijit Iyer-Mitra, Gopi Shankar, G Oorvasi, and Giti Thadani. The SMA petition has been filed by Kavita Arora and Ankita Khanna. Vaibhav Jain and Parag Vijay Mehta have filed the FMA petition.

Why is the legal recognition of same-sex marriages being touted as the next big milestone for the LGBT rights movement in India? How many same-sex couples in India have the financial means to move out of the homes they share with their parents and siblings? Is marriage equality a high priority for people who are more immediately concerned with protection from police brutality, workplace harassment, and domestic violence?

Same-sex couples in India often keep their relationships under wraps to protect their parents from hurt and shame. In Pradeep Sarkar’s short film Arranged Marriage (2020), Neil is in love with Dev but he hides this from his parents and agrees to marry a woman named Keya, who is Dev’s cousin. His lack of interest in sex makes Keya approach a psychiatrist. Together, they find out that Neil is gay and want to “cure him” using electric shock therapy.

According to Menaka Guruswamy, senior advocate at the Supreme Court of India, who spoke at the Oxford Union — a debating society in the UK — in February 2020, “Young people in India, gay or straight… [people of] different religions, different castes, different classes, when you speak to them, they all aspire for one thing in common, which is a long-term partnership…premised in marriage.” She is part of the team of lawyers representing Arora, Khanna, Jain, and Mehta.  

In a recording of this address on the Oxford Union’s YouTube channel, Guruswamy explains, “The legal system in India and most countries anywhere in the world is premised on a bundle of rights that recognise our personhood.” For her, this includes not only the right to love but concerns such as: “Who do I leave my home to? Who do I nominate for life insurance? Who do I have as a co-signer on a lease? Can I open a joint bank account?”

These questions indicate that marriage is a socio-legal contract, and the associated bundle of rights around ownership and transfer of property are guaranteed only to heterosexual unions. In a country where parents and an assortment of elders are involved in the selection of partners, marriage often revolves around religious and caste endogamy. Even adults who marry for love are inclined to choose partners from their own class, occupational group, or social network.

Gowthaman Saroja Ranganathan, assistant professor of legal practice at Jindal Global Law School, argues that “the imagination of a future for LGBT persons in India must include the annihilation of caste.” In his article “The Caste of Marriage” (2020), he points out how “mainstream LGBT activists” fail to address “the role of caste in regulating sexuality to maintain caste purity and the economic inequality that results from it.” This is a wilful omission, not a matter of oversight.

Look at Nupur Asthana’s web series Romil and Jugal (2017). The lead protagonists — Romil Kohli and Jugal Subramaniam — belong to families that are acutely conscious of their caste status. The parents accept their relationship after much emotional drama. There is “a big fat Indian wedding” befitting their position in society, and the couple is packed off to New Zealand with the support of a well-connected uncle. One of them studies theatre, the other pursues an MBA degree.

Will the legal recognition of same-sex marriages assure all same-sex couples such access to parental support, educational opportunities, and a socio-political environment where they can thrive? Will Indian parents start looking for caste-compatible matches for their gay sons and lesbian daughters? Will same-sex couples replicate or challenge the patriarchal conventions seen in heterosexual marriages? Let us wait and watch.