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Boom Reports

Same-Sex Marriage In India: Why Is It Not Legal Yet?

The government has opposed same-sex marriage suggesting that it is against the idea of a family. But the queer community argues that the demand is for equality.

By - Aisha Siddiqui | 3 April 2023 11:03 AM GMT

Until 2018, gay sex was criminalised in India. Five years later, the queer community is hoping for equal rights and recognition through the legalization of same-sex marriage. The Supreme Court has set 18 April to hear arguments for the plea.

The government has opposed same-sex marriage suggesting that it is against the idea of an Indian family that involves a man, woman and children. And that has left the queer community disappointed.

BOOM spoke to some queer people who explain why India should legalise same-sex marriage.

‘Same-Sex Marriage Is Not Against Ethos Of Family’

“The government’s response is just lazy, to put it simply. Claiming that same-sex marriage is against the ethos of Indian family unit is intentionally ignorant,” says Kanav N. Sahgal, a development sector professional who identifies as a gay man. Sahgal believes that same-sex marriage is a matter as intrinsic as the demand for equality in a democratic country.

He pointed out that the first country to allow same-sex marriage was Netherlands in the year 2001. Since then, 34 countries have legalized same-sex marriages.

Earlier this month, the government opposed same-sex marriage. In a counter affidavit to the plea that it filed in the Supreme Court, the government had said, "The notion of marriage itself necessarily and inevitably presupposes a union between two persons of the opposite sex. This definition is socially, culturally, and legally ingrained into the very idea and concept of marriage and ought not to be disturbed or diluted by judicial interpretation,"

Union Ministers have also consistently opposed the idea of same-sex marriage. Member of Parliament, Sushil Modi, in December last year, opposed the issue saying, "In India, marriage is a holy institution, and is a relationship between a biological man and a biological female. This is a centuries-old ritual and a part of our social fabric.”

Gourab Ghosh, a Mumbai-based queer rights activist, says that the idea of family for a queer person is very different in cases where the family has been violent or unsupportive. “Queer people find family in allies and friends. So I don't agree with the government's understanding of the family unit, which is essentially very hetero-patriarchal,” remarks Ghosh.

The Right To Choose A Family

Meghna Mehra, founder of All India Queer Association and a political consultant by profession, points out that incidents of discrimination and violence against queer people by their family are massive.

Stonewall, a UK-based LGBT+ rights organization, noted in its 2020 report that family members are often the main perpetrators of abuse against lesbians, bisexual women, and transgender individuals. This issue was exemplified by the case of Adhila and Noora, a lesbian couple who made headlines in 2022 after Noora was taken away from Adhila by force. The couple subsequently approached the Kerala High Court to secure their right to live together.

“There have been cases where the family has abandoned them when they needed medical support and not allowed them to meet their partner. Legalizing same-sex marriage solves these issues, where your partner can be considered your family, your next of kin,” Mehra said.

Mehra emphasises that discriminatory experiences are a daily reality for queer people, particularly those who are marginalized, and that legalizing same-sex marriage is crucial for ensuring their rights.

“Even if I speak strictly in economic terms, one can afford to live together without marrying with enough resources at their disposal. You can move away from your family and neighbors and start again. Queer people at the margins can’t afford to uproot their lives like that; they have no choice but to live with their families. They’re the ones who need this legal backing the most to be able to freely choose who to marry,” she said.

Equal Rights

The fight for equal legal rights goes beyond the legalization of same-sex couples for the Indian queer community. Despite the decriminalization of homosexuality, the personal life of a queer person is always under scrutiny by society.

“There are barriers to house hunting. For an out and about queer couple, finding a space to live is very difficult. I used to live with a partner who is bisexual, and we had to lie that we were colleagues or claim that we were just friends who were trying to get a flat together. It happens often, landlords don't give space to queer couples. Even if you're single and visibly queer, people create an issue,” narrates Mehra.

Mehra claims that queer couples do not find safe public spaces that are welcoming of their relationships. While insisting on the need for an anti-discriminatory law, Mehra reminisces, “We (Mehra and her partner) couldn’t hold hands or exist in any way that gave away that we are a couple. There have been times when we called each other with a term of endearment at a public space and people smirked mockingly. The very idea of two women in a relationship grosses people out.”

The queer community sees the legalization of same-sex marriage as a crucial step towards achieving other legal rights that are currently enjoyed by heterosexual couples in India. They believe that this would pave the way for a more inclusive society for queer people.

“It’s not just same-sex marriage as an issue that needs legal recognition. Suppose my partner wants to buy property together, open a joint account as a queer couple, or put my name while availing insurance benefits. We won't be able to do that. These facilities are a part of modern democratic life, so why should a queer person be denied that at all?” Ghosh asks.

Adding to the legal privileges the constitution provides a heterosexual person, Ghosh says, “We are far behind when it comes to legal rights for queer people. Equal pay, job opportunities, adoption, protective rights for the queer, and medical aid to the people who are transitioning are some of the most basic rights that a queer person needs as a citizen.”

The demand for same-sex marriage is closely linked to the quest for equal rights and inclusion for the queer community. Married heterosexual couples in India are entitled to a number of legal benefits that come with being a citizen of the country. They enjoy tax benefits such as joint income tax filing and exemptions on income from inherited property. A heterosexual couple in India is eligible for social security benefits including pension schemes, health insurance, and other welfare schemes. These legal privileges are among the many advantages that heterosexual couples in India have over their queer counterparts.

“The constitution is not a relic; it should mirror the changes happening in society. It's just that people who have lived as criminals for so long have started to live a little freely for the past 4-5 years; all that we demand is equality,” concludes Sahgal.

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