What does it mean to be ‘married’? And what, or rather who, defines a ‘family’? Thanks to the 10-day Supreme Court hearings on the marriage equality petitions filed by LGBTQIA+ individuals and allies, at least a section of India is opening up to the notion of re-examining our ideals of familial relationships. The arguments for and against the petitions have shed light on the holes in the concepts of marriage and family as we know them, not only for LGBTQIA+ persons but for cisgender heterosexual people as well.
The petitioners in the SC do not seem to harbour any romantic notions of marriage and family. Rather, what they want are concrete legal rights, protections, and entitlements. They demand that LGBTQIA + individuals in long cohabiting relationships or even customary marriages be legally recognised as marital partners. They also want the full scope of marital and familial rights be granted to the LGBTQIA+ individuals. Some argue that the first step towards this can be to amend the references of ‘wife’ and ‘husband’ in the provisions of the country’s civil marriage law, the Special Marriage Act (SMA), to the gender neutral ‘spouse’.
Some specifically want the notice regime, as per which a couple intending to get married under the SMA is required to give notice to the marriage officer at least 30 days before the ceremony, to be removed from the provisions of the Act. They contend that it defeats the very purpose of the SMA, which was to encourage inter-caste and inter-religious marriages, by instead allowing the applicants to be tracked and intimidated, often violently. The petitioners also point out that it is discriminatory to have such a clause under SMA when it is not present in any of the religious personal laws. It is to be noted, the petition even led to the court acknowledging that the provision is patriarchal and leads to invasion of privacy.
Some arguments in court bring attention to the violence commonly meted out by natal families, highlighting the need to provide LGBTQIA+ persons the freedom to choose their own families instead. Marriage will be a legal shield for persons experiencing violence from their natal families, the petitioners contend in court. But they also point out that, even more crucially, the court should allow people who are or choose to be single, or do not wish to marry, the right to appoint person/s of choice who can act on their behalf when the need arises. Natal families often “choose to ignore our wishes when they assume control in our lives in times of need,” says one of the petitions filed by Rituparna Borah and others. Apnon Ka Bahut Lagta Hai (Our Own Hurt Us the Most), a report borne out of a closed door public hearing of “31 queer and trans persons”, has been submitted before the court to shine light on such abuse.
The petitions and the arguments in court mostly concern the mundane, practical, everyday aspects of marital and familial life — such as having someone to take care of you when you are in hospital, someone to nominate for life insurance, or someone with whom you can open a bank account, rent a house, or adopt children with. Importantly, they also bring to the fore the systemic exclusion of people who stand outside legally sanctioned relationships, driving home the point that citizenship in our country is heavily mediated by the heteronormative ideal of a family — a single unit comprising a mother and father from a similar social background, and their children.
Marriage has historically been used as a tool to endorse and buttress patriarchal authority, fixing strongly bound and well-defined roles to the parties involved, primarily in accordance with their age and gender. The works of feminist scholars such as Mary John and Samita Sen are instructive about this phenomenon. In her essay ‘Unsettling the Household: Act VI (of 1901) and the Regulation of Women Migrants in Colonial Bengal’ and her work on Jute industry in Bengal, Samita Sen illustrates how even while employing women in mines and plantations in India and abroad, the colonial government conveniently worked with the premise that a woman’s family had the primary claim on her labour and body, and not the woman herself. If a woman worker wanted to migrate, she had to obtain formal permission from the family. Even factories preferred women who were married, and therefore “respectable”.
Unlike the West where the State made factory laws and age of consent laws to release workers from the hold of the family, thereby dislocating economic activities from the household to factories, households in India became mini factories by themselves. Women (and children) have and continue to contribute immensely to boost economic productivity, but without due pay or recognition. ‘Work’ in the Indian context also does little to liberate a woman, as it is primarily done for the sake of the family-household.
Mary John, inquiring into the enduring enigma of child marriages in her Child Marriage in an International Frame: A Feminist Review from India, makes a compelling argument that, rather than age, it is the compulsion of marriage that should worry us all. The Indian State’s failure to create affordable and accessible educational opportunities, coupled with the economy’s failure to provide equal and fair wages that enable women to live independently, leave young women with few options except marriage. Many young women in India still work to collect dowries for marriage, while married women work for the sake of the family. Men too, especially in the states of Uttar Pradesh and Bihar, are married young. The combined result is that heterosexual marriage turns into the most ‘rational choice’ in contemporary India.
Unlike in the West, where the State and Market make it possible for individuals to survive and live on their own, in India, familial relationships determine the quality of life for the majority. Dependence is actively fostered, upheld, and reinforced. In this overall context where a family formed through marriage offers protection, safety, respect, its appeal to the LGBTQIA+ petitioners also makes sense.
However, given this centrality of marriage, there is also tremendous surveillance and guarding of boundaries of marriage and families too, with families and kin networks actively inhibiting individuation through marriage outside the normative caste, class, and other boundaries. The cruelty and violence experienced by LGBTQIA+ individuals, often from their own natal families, is also related to how their identity assertion disturbs the comfort of compulsory heterosexuality. Their very being and presence threatens the institution. Similarly, when cis-heterosexual persons challenge normative marital and familial relationships through choice of partners outside their biradari (fraternity), they too begin to experience vehement opposition, cruelty, and violence. India’s tendency to hound inter-caste couples is all too well known.
Over the past few years, there has even been a State-aided onslaught on a person’s constitutional right to choose partners. Uttar Pradesh has made or amended existing laws to make the process of interreligious marriages even more strenuous. The state’s Prohibition of Unlawful Conversion of Religion Act of 2020 requires those intending to marry across religion by conversion to inform the district magistrate two months before, and furnish every detail about themselves to the authorities.
Conversion to another religion is usually one of the routes adopted by couples who want to avoid the SMA’s 30-day waiting period and the associated harassment, as religious marriage laws do not prescribe any such waiting. This blatantly unconstitutional ordinance was implemented by the state to prevent marriages of choice primarily between Hindu women and Muslim men.
Maharashtra government too had announced its intention to also enact such a law, with the state even issuing a government resolution through its Women and Child Welfare Department stating that it would gather details of all women who eloped or had choice marriages. The investigation would apparently even extend to the registrar’s office, to find if they had parental consent. The committee formed to this effect, named ‘Intercaste/Interfaith Marriage Family Coordination Committee (state level)’, purports to “unite estranged daughters with families,” essentially stripping women of their agency.
Equally disturbing is the Madras High Court judgement last year which declared that self-respect marriages can only be contracted by two Hindus. Introduced by revolutionary social activist Periyar to challenge brahmanical patriarchy and ritual dominance, self-respect marriages were a practice that established the right of any two individuals to announce their decision in the presence of their friends and comrades. Reading it as a marriage between two Hindus is antithetical to the very spirit of this practice.
Besides, legal resource group Partners in Law and Development has documented in their study ‘Child Marriage Prosecutions in India’ how both the child marriage act and the Protection of Children from Sexual Offences (POCSO) Act get invoked by authorities and parents often when the young adults choose their partners. Despite repeated injunctions in the High Courts and the Supreme Court that consensual young adult unions should not be criminalised, the Assam government, in a recent mass drive against child marriage, has arrested thousands of young men and their family members using the Child Marriage and POCSO Acts. This includes cases of consensual underage marriages, arranged by themselves or the family, raising concerns about its misuse against the poor and the minorities.
Other states are also seeing increased state surveillance and societal violence against young people marrying outside the boundaries set by their families. The travails and the violence faced by those seeking to marry across caste, especially between grooms of ‘lowered caste’ and brides deemed ‘upper caste’, is well documented by organisations such as Dhanak in the north Indian states, and anti-caste groups such as Kula Nirmulana Sangham in Telangana.
In this overall context of our sexual citizenship being framed by compulsory marriage in contemporary times, the idea of rethinking family beyond marriage, as suggested by the marriage equality petition filed by Rituparna Borah and others, begins to assume importance. Not only for LGBTQIA + people, but also for cisgender heterosexual people. Why should families be either based on birth or marriage? Don’t long standing friends, companions, and comrades constitute one’s kin? With normative marriages under strain, the notion of family as a chosen and composite entity becomes critical for all those who do not have a linear life determined by a single natal or marital family.
Whatever might be the final outcome of the ongoing marriage equality hearings, the arguments, the discussions, and the debate in their wake should open up our ideas of a desirable family beyond the normative ideal of marriage. Marriage laws, including the religious marriage laws, have been evolving in response to the women’s movements as well as the changing needs, claims, and demands of the women litigants. Just as the Muslim Women Protection of Women on Divorce Act (Section 126 of the Criminal Procedural Code) brought in a one-time post-divorce settlement into the marriage law jurisprudence. and the Protection of Women from Domestic Violence Act enabled women in live-in relationships and transgender couples to seek protection, the LGBTQIA+ persons’ petitions for marriage equality are likely to have consequences for the sexual citizenship of everyone in the country.
A Suneetha is an independent researcher who works and writes on issues of gender, law, minorities, violence, and sexuality. She is a co-editor of A World of Equals, a textbook on Gender, Orient Blackswan, 2022, and is currently writing a book on Muslim politics in the Telugu region.