The topic of same-sex marriage has gathered a lot of attention, as many people from the community have spoken up about it. After the decriminalisation of section 377, the relief and happiness felt by the LGBTQ+ people started to wane as the environment remained unsafe for many minorities within the community. The community had hoped for better rights and better treatment after the law was read down, but very little has changed after three years. The situation has remained mostly the same as the people most affected by that dehumanising law still suffers. Queer activist Ashley Tellis spoke on the verdict, arguing that privacy is “a classicist idea” and that the law never affected those who could afford it. He also said, 

“ …Hijras on the road who are often forced to have public sex for money to survive don’t have this privacy… I don’t think there will be any actual change on the ground.” This was said at the time of decriminalisation of the law, and it is sad to see it happening in reality. 

With the issue of same-sex marriage being brought into the limelight, the question arises whether having the right to marry the partner of your choice will change the way society perceives them. Several people within the community have spoken up about their lack of interest in same-sex marriage due to their lack of rights. 

The legalisation of same-sex marriage is necessary to survive in a society such as ours. The prejudice and hatred following the queer community have a direct correlation to the colonial past of India. Till then, homosexuality had been more or less accepted as a part of our culture. The law did not just prohibit sexual acts between queer people; it negated their identity and self-worth. It was, in every sense, dehumanising. With the reading down of the law, more people have come out and felt safe enough to share their experiences. If queer marriage was legalised, there is a chance of further improvements for the community. The three primary petitions submitted before the court commonly refer to the benefits marriage gives in various sectors. If anything happens to one of them, the other person can make decisions on their behalf at the hospital. A marriage license will allow them to open a joint bank account, add each other as beneficiaries for life insurance policies, or own property together.

Delhi Queer pride. Photo: Sreekanth Sivadasan

The first petition is filed by Dr Kavita Arora and her partner Ankita Khanna. They filed a PIL in 2020 for the enforcement of the fundamental right to choice of partner. They have been together for eight years and had to go through several instances where they encountered many problems as their relationship was not seen as authentic. Parag Vijay Mehk, an NRI living in America and Vaibhav Jain, an Indian citizen, filed the second petition. Even though they are legally married in the USA, it is not recognised in India. They filed under the Foreign Marriage Act after Vaibhav’s father fell ill during the quarantine, and Parag wasn’t allowed to come with him to India. The third petition is by Abhijit Iyer Mitra and others filed under Hindu marriage law. The petition has contended that marriage between same-sex couples was still not possible despite the Supreme Court decriminalising consensual homosexual acts.

The High Court, in response to the petitions, approached the Central government. Represented by Solicitor General Tushar Mehta, the Centre fought against the petitions claiming that queer marriage is against the culture and talked about how it doesn’t align with the 5000-year-old history of Sanatan Dharma. Mehta argued that there are other pressing matters to deal with as we are in the middle of a pandemic and that “nobody is dying because of lack of marriage registration”. 

The petitions clearly stated that they need marriage legalisation for medical and legal reasons. But the Centre doesn’t find this a pressing matter.  It is also ironic to see the government using the pandemic as an excuse to avoid confronting this issue, considering their notorious mismanagement of the covid crisis. 

The assumption that Indian society is inherently homophobic is wrong. In a survey conducted by “Logically India”, common people were asked about their opinion on same-sex marriage. While the majority agreed that it was needed, a few did not. One person did not want the queer community to be out in the open to see; another said it was against their culture. Those who agreed with the legalisation focused on how it is a long time due and that everyone deserves to marry the partner of their choice. 

The topic of same-sex marriage has gained a lot of attention around the world in the past decade. Twenty-nine countries have legalised gay marriage. Among them are Australia, the USA, England, Ireland, etc. Almost twenty years ago, the Netherlands was the first country to legalise same-sex marriage, while Taiwan was the first Asian country to do so in 2019. Queer communities in these countries went through a lot of rallies and petitions to get to this point. In America, the journey for equality started in the 1990s. In 1996, the Defense of Marriage Act was signed, denying the right to marry for the queer community. From then on, it was almost twenty years of struggle until same-sex marriage was legalised on June 26, 2015. Looking at these struggles for the rights of LGBTQ+ people around the globe points out how far behind our country is in this endeavour. 

Delhi Queer Pride. Photo: Sreekanth Sivadasan

Within the queer community, there is a difference in opinion on the matter of marriage. In the article ‘Same-sex marriage gets a push in India, but some in queer community feel other rights require more urgent attention’, Poorvi Gupta talks about the suffering of several minorities within the queer community. They were most affected by Article 377, and their fight still hasn’t ended. More urgent issues concerning the trans community need attention, including the fight to repel the very regressive Trans Rights Bill. A queer person (who remained anonymous) also talked about the need for better employment for queer people and about fighting trans erasure. Trans advocate Swati Bidhan Baruah also proposed the need for the community to flourish within and learn to create a stable environment before considering marriage. 

There is an urgent need to give space to the queer community to express their opinions on this matter, they deserve better treatment and rights, and more people should be advocating for them. As mentioned above, marriage as an institution comes with certain privileges, and it is a step in the right direction. But the plight of those who suffer the most should be given equal attention as the topic of same-sex marriage. The queer community continues to face harsh treatment from society, their sexuality is still considered unnatural, and while the 2018 verdict protects them to an extent, it is still not enough. 


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