Marriage: A Privilege

Legislation

Section 5 of Hindu Marriage Act states that a marriage may be solemnised between "two Hindus", it doesn't state if there is a need for a male and a female or not. It uses the terms "bride" and "bridegroom", while the Special Marriage Act walks a line further and states in Section 4 as "marriage between 'two persons' may be solemnised", further using the terms "male" and "female" in Section 4 (c). This duality in segregation is consistent in every legislation including the 2020 draft bill concerning surrogacy, which defines couple as a "man" and a "woman". The condition is similar in Christian, Muslim, Parsi, Sikh marriage acts and customs.

Cultural History

Further to accentuate this inherent duality in our understanding, adds the pseudo-moral authority of considering a union, other than the heterosexual one, as an opposition to the culture and identity of the society. This was tackled mostly in the case of Arun Kumar, where several traditions and stories were stated and considered to bust the false immorality attributed to the LGBTQ+, including from Mahabharat, and Ramayan. One such is the marriage of Lord Krishna to Lord Aravan, soon after which Aravan was sacrificed and Krishna wept for him as his widow, the same is re-enacted as a holy tradition in southern States, where males become wives and weep for their divine husband Aravan.

Also, Lord Ayyappan is considered as the son of Lord Vishnu (Mohini) and Lord Shiva, and step-son of Mother Parvati. Further, according to the Padma Purana and the Krittivasi Ramayan, Bhagirath was born by the union of two widows of King Dilip. These are not just stories but are the inclusion of the fact that we as a culture appreciated homosexual unions, another example would be the "same-sex couple"Varuna and Mitra as depicted in the ancient texts of the Rig Veda.

It would be unfair to not mention the extensive representation given by the Kamasutra, and Khajuraho temple arts. On contrary to the general arguments given, our culture has been more accepting of various sexualities and had higher levels of morality than what is being presented today.

Stagnant Rights

The recognition of the union of the LGBTQ+ community not only is an individual right but also gives various rights over each other, including inheritance, gifts, adoption as a couple, etc. Presently, if an LGBTQ+ couple wants to give rights to their spouse out of their property it can be done only by the way of a will, which also is restricted to part of the property in some personal laws. They cannot take joint loans or even an insurance policy for their spouse.

While, in Shakti Vahini (2018) the SC held that an adult has the fundamental right to marry a person of their choice, the same remains to be a reality for LGBTQ+ couples. There has been a series of legislation after Justice K.S. Puttaswamy (2017) upholding the right to privacy of individuals. Yogyakarta Principles (2006) states that: "All human beings are born free and equal in dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights."

Yet there is an overextended ignorance towards the pending rights of the LGBTQ+ community which is against the very spirit of equality, and personal liberty enshrined in the Constitution, via Article 14, 15, and Article 19, 21, respectively. This goes in accord with various International Statues including UDHR, and International Covenant on Economic, Social, and Cultural Rights, which have directly held that there should not be any discrimination on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status. They broadly included everything in its ambit, stating directly and indirectly that there should be no discrimination of any sort on any basis.

There is a need for a progressive realisation of the rights in consonance with the morality of the present era and not of the gone times. Bentham's "greatest happiness of greatest people" principle can only be achieved not by the majority influence but by using a more holistic approach to the "utilitarianism principle", the union of two non-heterosexual couples does no harm to the society, it just ensures them equality and their respective right of privacy and personal liberty.

Now, with the filing of these petitions questioning is not restricted to the provisions of Hindu Marriage Act ,1955, and Special Marriage Act,1954, but has been stretched to the Foreign Marriage Act, 1969 and hope is to bring other legislations in the box of scrutiny and move towards more inclusive ones. Justice Malhotra in Navtej Singh Johar observed that history owes an apology to the members of the LGBTQ+ community and their families, and rightly so.

The Netherlands was first to recognise same-sex marriage back in 2001, the latest being Costa Rica in 2020, by next year we might join the list. The petitions will be taken up on February 3 next year. We remain hopeful, this would be another landmark in our journey for equal rights and a sincere continuance of the apology.

The author is an Advocate practicing at Delhi High Court and views are personal.

[1]Navtej Singh Johar v. Union of India (AIR 2018 SC 4321)