Marriage Equality: A Fundamental Right Denied to an Oppressed Minority
Marriage equality is the right inherited by people to marry whomever they choose as long as both the parties involved are consenting adults. Some people also like to use the term ‘same-sex marriage’ to refer to the same concept, but this article won’t be doing that as even though both the concepts are similar, they are not the exact same in their meaning. While legalising same-sex marriage means recognising the right of people of the same sex to marry each other, marriage equality means recognising people’s right to marriage regardless of their sex and/or gender[1]. In simpler words, while marriage equality includes same-sex marriage in its meaning, the term ‘same-sex marriage’ has a narrower meaning than the term “marriage equality’ which is a broader concept. Most countries around the world if not all already recognise the right of people to marry individuals of the opposite sex, which leaves everyone else without an opportunity to ever have a legally recognised partner. Assuming legalising same-sex marriage will solve that issue implies thinking in terms of binary and not even acknowledging anyone whose sex isn’t male or female. It would also mean not even considering people’s gender identities when marriage is concerned.
Due to a clear majority of the world willingly ticking the box in front of either male or female when their sex is enquired, it becomes easy to assume that those are the only two sexes, but that isn’t true. It is scientifically proven that there are more than just two sexes, and those non-binary sexes are often grouped together and referred as ‘intersex’. Answering the question “What does intersex mean?” in detail will result in a full-length medical article which is not the objective right now. So, in words simple enough for even a five-year old to understand, it can be said that being intersex means that an individual’s anatomy does not exactly match a conventionally male or female anatomy or that their body may not function in a way that can be strictly categorised as either male or female. This can be due to genetic error or other conditions that may block a person’s hormone glands. Being intersex is not a disease, and normally, it usually does not cause people any harm other than societal unacceptance and discrimination[2]. We need marriage equality so that even intersex people can get married.
Acknowledging and considering individuals’ gender identity while talking about marriage equality is important because all the current laws in India don’t just let only individuals of the opposite sex get married but are also hetero-normative in nature which means that they impose traditional gender norms on individuals by allotting different rights and duties based on their sex. In such a situation, even if India recognises marriage equality solely based on sex, the State probably would be making separate provisions for all the couples not involving exactly one male and one female rather than amending the current provisions and making laws same for everyone regardless of their sex. This can cause people to enter a marriage that imposes husband-wife-like gender roles on them solely based on their sex even if their gender identities may not be in sync with their sex. For example, a trans-man who has not had Sex Reassignment Surgery or is not even willing to have it will have to marry his fiancé under the Special Marriage Act, 1954 (assuming they both have different religious beliefs) because even though both the people in this relationship are men (gender), one’s sex is male, and another’s sex is female. This will impose different rights and duties on the two of them based on their sex even though they are both men.
Marriage Equality: A Fundamental Right
Even though the legislature of India, and in most cases, even the Indian judiciary refuses to legally recognise marriage equality, the Constitution of India, 1949 clearly supports it under Part III of the Act i.e., “Fundamental Rights”.
Article 14 Equality before law
no person inside the territory of India shall be denied equal protection of laws or equality before the law by the State.
Article 15 (1)
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
By recognising marriage only between the opposite sexes, the State (the law makers) is clearly denying a certain section of the population equality before law which is a clear infringement of Article 14. That specific section of the demographic is being denied of their right to marriage based on their sex which causes infringement of Article 15 by the State. One may argue that if male and female are presumed to be the only two sexes then, not recognising same-sex marriages is not discrimination on the ground of sex as males and females do have the right to marriage, they just can’t marry anyone but a person of the opposite sex. The major problem with this argument other than being non-binary exclusionary is that if a person could legally get married to another person only if they belonged to the other sex, then that is the cookie-cutter definition of sexual-discrimination right there. If you tell a person A who is a male that he could do an act X if he were a female instead, then that is exactly what discrimination on the ground of sex is. Males are being denied the right to get married to another male because one of them isn’t a female and the same applies to females too. Couples are being denied the right to get married because they aren’t a set of one male and one female. And when the state denies to people the fundamental right recognised under Article 15 and the judiciary does not do anything about it, it denies them equal protection of laws which leads to infringement of Article 14 once again.
Article 19 (1) (a) freedom of speech and expression to every citizen of India
Many people like to argue that the Indian government isn’t against marriage equality as “people are free to marry whomever consenting adult they want, they just can’t get any document supporting their marriage” which is a simple way to say “Queer marriages are not marriage. They should be grateful they’re not being put into prison for playing house rather than expecting recognition and rights that come with a real marriage.” And it is true, at least in India, Queer weddings are nothing but people pretending to be married when they aren’t. Those are not real marriages because they aren’t being treated as real marriages by the State, the law does not recognise those marriages. A person in a queer relationship isn’t allowed to opt for “married” in forms, they cannot acknowledge their partner under any legal documents, no law allows them to be recognised as family. All this is nothing but people’s freedom of expression being snatched away from them by the hands of the State.
Article 19 (1) (c) the right to form associations or unions to every citizen of the nation
The term ‘union’ is not defined anywhere in the Act, neither is it mentioned to refer any other statute for the definition hence, it won’t be a stretch to say that as mentioned in the provision in concern, unions must also include civil unions. Civil union means a legally recognised union of two people along with rights similar to that of a marriage. A marriage is also a form of a civil union. This term differs from marriage in a way that to some people, heteronormativity is an essential part of a marriage due to reasons like their religious beliefs hence, even if they may not contest domestic unions getting legal recognition and rights same as any married couple, they still don’t want to let them use the term marriage for their relationship as it is sacramental to them. While this is not a justified reason to oppose anyone’s relationship, even if the State may use the term Civil Union instead of Marriage while recognising couple’s rights to be each other’s family, to inherit each other’s property, to be able to adopt children together, and even seek dissolution and alimony/maintenance if needed, would be a great improvement from the current situation. Rights mean more than titles, while getting the title of a marriage is important, getting the rights associated with a marriage first is of prior importance.
Article 21 Protection of life and personal liberty
This article can be said to be the soul of the Constitution of India. It is often referred by the general-public as ‘Right to Life’ due to the rich history of the broad interpretation of this brief looking article.
In allegedly, one of the most famous cases related to the interpretation of Article 21, Kharak Singh V. State of Uttar Pradesh[3], the Honourable Supreme Court of India put forward that the term ‘life’ in Article 21 means more than mere animal existence.
In Francis Coralie V. Union Territory of Delhi[4], the court stated, “The right to live includes the right to live with human dignity and all that goes along with it” furthermore the court continued that it includes the right of “freely moving about and mixing and mingling with fellow human beings and must include the right to basic necessities of life and also the right to carry on functions and activities as constitute the bare minimum expression of human self.”
After reading the above-mentioned judgements, any sane person would agree that the right to marriage, the right to have a family, and the right to adopt children if one is capable of providing the children in concern a good standard of living should be protected under Article 21 of the Constitution of India as these are all very basic necessities of human life. In fact, in the case of Shafin Jahan V. Asokan K. M.[5], the honourable Bench of the Supreme Court of India even mentioned in the judgement that the right to marry a person of one’s own choice provided that the other person consents too, is integral to Article 21.
Why does India not recognize marriage equality?
India is a self-acclaimed secular country with a clear majority of Hindus and a major minority of Muslims. Marriage or even marriage-like relationships between anyone but a man and a woman are expressly haram in Islam[6] which is why it makes sense for majority of Muslims to oppose the idea of marriage equality. On the contrary, according to the beliefs of Hinduism, marriage is a sacrament and an eternal union between two souls not just two bodies[7], and souls don’t have sex or gender. But even after such progressive seeming belief system, the Hindu community has been a heteronormative society for the most part. Due to mingling with homophobic foreign communities like the Mughals and the Britishers for centuries, Hindus started to adopt certain parts of their culture and became homophobic too. Today, a great majority of Hindus are misled to believe that heteronormativity and homophobia are essential parts of their culture. So, apparently, the only time Hindus and Muslims in India seem to agree is when the basic rights of another minority community are being seized.
And when such huge population of a nation seems to oppose the idea of marriage equality, it is only natural that the government won’t recognise it on the risk of upsetting the people resulting in loss of precious votes. Moreover, even the individuals forming the government seem to be opposing the idea to recognise marriage equality as recently (February 2021), when a petition to give legal recognition to same-sex marriage was filed in the Delhi High Court, the Centre felt obligated to share their unsolicited two cents on the issue with the HC. The centre baselessly denied acknowledgement of marriage equality as a fundamental right and continued to make more baseless and unreasonable comments like “Same sex individuals living together as partners and having a sexual relationship is not comparable with the Indian family unit concept of a husband, a wife and children, which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two,”[8]. This statement in itself is homophobic, transphobic, sexist, ignorant and outright dismissive of couples who cannot or do not want to have children. It says that same-sex relationships are incomparable with heteronormative marriages and just because they aren’t exactly the same, one gets to be a sacramental institution and the other can’t even be a recognised fundamental right. By claiming that a “biological man” as a husband and a “biological woman” as a wife is essential for a marriage, the people at the Centre did not just encourage transphobia but also demonstrated their ignorance regarding the matter. Expressing that children are an essential part of all marriages for them to even be recognised as one is not just implying that same-sex couples are incapable of having and raising children together which is a highly insensitive regard to make but also pokes fun at couples who cannot have or choose not to have children. The comment approaches to invalidate the marriage of childless couples which is again an extremely insensitive and even inhumane thing to do.
Conclusion
Marriage and the rights that come along with it are fundamental rights of every adult and not just a privilege of a few. No minority is small enough to be insignificant when their fundamental rights are in question. We are not just in the twenty first century but also in the twenty first year of this century, it is high time that as a country known for its diversity and the unity within it, we treat everyone equally regardless of our differences. By not making new laws to recognise marriage between individuals of all sexes and genders, the State is denying an already socially and legally oppressed minority their fundamental rights and is killing the very soul of the Constitution of India. India that discriminates against its own innocent citizens is not India at all. It is anything but a country our founding fathers dreamt of.
[1]“Marriage Equality” by Dictionary.com
https://www.dictionary.com/browse/marriage-equality
[2] “What does it mean to be Intersex?” by Jayne Leonard (Medical News Today, 22 March 2021)
https://www.medicalnewstoday.com/articles/intersex
[3] Kharak Singh V. The State of U. P. & Others 1963 AIR 1295
[4] Francis Coralie Mullin V. The Administrator, Union Territory of Delhi 1981 AIR 746
[5] Shafin Jahan V. Asokan K. M. & Others SC Criminal Appeal No. 366 of 2018
[6]“Homosexuality and Transgendrism in Quran” by Peter Dankmeijer (GALE: The Global Alliance for LGBT Education, 21 October 2020)
https://www.gale.info/en/database/reading/homosexuality-and-transgenderism-in-the-quran
[7]“Hindu Wedding- The union of two souls” by Rashtra Darpan (02 July 2017)
http://www.rashtradarpan.com/religion/hindu-wedding-the-union-of-two-souls/
[8]“No fundamental right to same-sex marriage, says Centre” by Abhinav Garg (Times of India, 26 February 2021)
Author: Indu Singh Tanwar,
Manipal University Jaipur and Third Year BA-LLB(Hons.)
