Equality in love and inheritance

Same-sex marriages would entail a review of gender-asymmetric anomalies in Indian law, and eventually pave the way for a more equitable social environment

Under Indian law, a convicted murderer serving out a jail sentence, or awaiting execution, has the right to marry somebody, provided the “somebody” is not of the same sex. This provision has little to do with the hypothetical murderer meeting their sexual needs.

It affects the disposal of the murderer’s estate. By default, the spouse inherits. If our hypothetical murderer has minor children, the spouse is also their parent and guardian, by default. Thus, the law offers even criminals the agency to decide who may inherit whatever legitimate assets they possess. 

Stretching this thought experiment a little further, if a murderer gets married and then divorced while in jail, the spouse has a claim on the murderer’s assets, and vice versa, the murderer has a claim on the spouse’s assets.

Those rights — the right of inheritance, the right of parenthood and guardianship, and the right to alimony — are all at the heart of the current arguments for allowing same-sex marriage. In every jurisdiction where same-sex marriage has been debated, those rights have actually been key.

The sexual behaviour of consenting adults is really nobody’s business, though conservatives opposing same-sex marriage here, and in other countries, persist in referring to this as “unnatural” and “against our culture”.

The unanimous 2018 judgment of a five-member Bench of the Supreme Court in Navtej Johar Vs Union of India recognised that Section 377 of the Indian Penal Code, which deals with “sexual activities against the order of nature”, was unconstitutional “in so far as it criminalises consensual sexual conduct between adults of the same sex”. References to sexual activity in this context, therefore, are irrelevant, though this will hardly stop people from making such references.

Regardless of gender, why do people get married at all rather than living together? In the Indian context, where a very large proportion of marriages are arranged by family, it is often in order to give families an assurance that hard-won assets will be inherited by somebody the family approves of.

In ideal desi circumstances, two individuals get married with the blessings of their respective families. Then, they have children with the expectation that the children will eventually inherit automatically. Sexual activity enters the equation only as a convenient route to procreation. Legal guardianship of children within a marriage also occurs by default, as does “step-adoption” in the case of subsequent marriages.

A formal certificate of marriage is also useful if a relationship goes sour. Marriage provides a template for the division of property and income, and custody of minors, in the case of a divorce. That template differs under the various religious personal laws of marriage recognised in India, and under the Special Marriage Act.

But it’s always there, since divorce can occur under all the Marriage Acts. You can argue about the fairness of divorce settlements in various types of personal law marriages — as in the Shah Bano case. But there is provision for the division of property and income, and custody of children in all the Acts. No such clear-cut format exists for informal relationships.

If marriage did not confer those rights and obligations, fewer people would bother to get married, or face family pressure to do so. If those rights and obligations are automatically conferred on anybody who marries into the opposite sex, they should equally be conferred on anybody who marries into the same sex. Surely, that’s a simple argument to make, once you remove the prurient irrelevancies about sexual activities. Also, allowing same-sex marriage would allow for the recognition of such unions where foreigners are concerned, which would perhaps please Tim Cook. 

Of course, same-sex marriages would logically entail the review of gender-asymmetric anomalies embedded in Indian law. The age of consent is different for men and women, for instance. Divorce law also does not provide for the maintenance of a male spouse, and could cause head-spinning complications in lesbian marriages. Plus, it could also entail a review of laws relating to surrogacy and adoption. Those subsequent reviews could lead to a more equitable social environment.