The Supreme Court of India is likely to pronounce judgement on the same-sex marriage petitions this week on or before 20th October 2023 as one of the judges on the bench is retiring on that day. Before the matter reached the Supreme Court in November 2022 many petitions on the marriage equality issue were filed in various State High Courts. It would have been in the fitness of things if the High Courts had first deliberated on the issue. But the Supreme Court peremptorily transferred all the petitions to itself.
In 2018 when the judgement on Section 377, Indian Penal Code was expected the mainstream media blitzkrieg on the issue started months before the judgement. I was also interviewed by Indian Express and Los Angeles Times as I was the first person in India to file a case on behalf of AIDS Bhedbhav Virodhi Andolan (ABVA) for striking down of S. 377, IPC. ABVA’s struggle for gay rights in the twentieth century got wide coverage in the media then. This time around the mainstream media is unusually silent on the same-sex marriage issue. Is it an indication of the kind of judgement expected?
For me personally as a feminist marriage is a patriarchal institution. The institution of marriage thrives and survives on inequality and subjugation of women. I have spent most of my life fighting patriarchy in both my personal and political life. Some success that I have achieved in my personal life has come at a very high cost. At the same time, as a life-long member of ABVA, I have supported marriage equality for the LGBTQ community. ABVA in 1991 came out with a Charter of Demands in its citizens’ report ‘Less than Gay’ which included the right to marry. It for the first time in India demanded that the Special Marriage Act should be amended to allow for marriages between people of the same-sex. Not surprisingly the Supreme Court while hearing the arguments categorically stated that it will confine itself to the Special Marriage Act and not the other personal laws which were also under challenge before it. However, as a lawyer I think that it is for the parliament to debate and legislate on the issue.
Once briefly married, now as a single woman about to soon become a senior citizen I have been grappling with the same problems faced by the LGBTQ community. How to nominate someone who is not a blood relative in bank accounts etc. What to do with my worldly possessions after I pass on? Could I give it to someone outside my blood relatives? What legal hassles will be faced by the person or institution I Will my worldly possessions to later on? The deep-seated patriarchal notions don’t recognize any relationships outside blood and marriage. This needs to change not just for the LGBTQ community but for the entire society.
LGBTQ couples have been getting married for decades even without legal sanction. ABVA has recorded many such instances in its seminal report ‘Less than Gay’. Over two decades ago I attended a wedding ceremony of two of my lesbian friends. It was a different kind of wedding. They asked friends from different religions to perform some ritual from their respective religion related to a wedding ceremony. So Sikh, Hindu, Muslim and Christian rituals were performed at their wedding albeit in a truncated way. It was not a legal marriage but socially it was accepted among their friends and relatives. A Hindu and Muslim lesbian couple I knew adopted a child in the name of the Hindu woman partner. These are some of the ways in which LGBTQ community has managed to circumvent unequal laws.
However, there are times when at a personal level I find it difficult to accept that the LGBTQ community also wants to emulate the patriarchal institution of marriage. But legally and constitutionally I firmly believe that all citizens of India should have the right to marry. Once all have equal rights only then the question of choice arises. But in my heart I do hope for a different kind of social structure based on equality with the help of my LGBTQ friends and not a perpetuation of the patriarchal institution of marriage.
[Shobha Aggarwal is an independent legal researcher, advocate, Delhi High Court; activist, feminist, has had a brush with socialism. She has authored the path-breaking report “The Public Interest Litigation Hoax in India – Truth Before the Nation” published in 2005 which stays uncontested till date. She has done the ‘Advanced International Study Program in Peace and Conflict Transformation’ from the European University Center for Peace Studies, Austria.]
