“There is no logic in what the government is saying,” chorused activists and members of the LGBTQIA+ community after the Centre on Friday, 25 February, opposed pleas seeking recognition of same-sex marriage in the Delhi High Court, citing the ‘concept’ of the ‘Indian family’ system.
“Living together as partners and having sexual relationship with same-sex individual is not comparable with the Indian family unit concept of a husband, wife and children, which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’ and children born out of the union,” the Centre said in its reply.
Slamming the BJP-led government’s stand on the issue, Anjali Gopalan, Human Rights Activist and Director of The Naz Foundation, told The Quint, that the idea of family has changed over the years.
"“The government is saying that only man and woman can make a family. Thousands of single parents are raising kids – those who are single by choice, divorced or have lost their partners. Does this mean you are negating a person’s capability in nurturing their family?”" - Anjali Gopalan, Director, The Naz Foundation
“I see young people living with each other, I see a couple in love but choosing not to get married, I see people who choose marriage but not kids. A range of things are happening and the government needs to wake up and smell the coffee,” Gopalan added.
‘No One Idea of Family Can Be Imposed’
Akshat Agarwal, Research Fellow, Vidhi Centre for Legal Policy, asserted that this argument that the Indian family comprises of a biological man and a biological woman is a narrow understanding of Indian culture.
“Transgender persons have always lived in their family units outside the heteronormative family. Similarly, scholars such as Ruth Vanita in their research have pointed out the prevalence of same-sex family units for decades. Further, what is ‘family’ is itself contested and the Constitution protects individual choices to form their own families. No one idea of a family can be imposed from above,” Agarwal told The Quint.
Delhi-based doctor Nitya Mehra* (name changed to protect identity), has not spoken to her ‘family’ for the last two years, since she came out to them as a lesbian. She lives with her partner and has formed a circle who mean “more than family” to her.
“The so-called family I was born into has not bothered to check in on me, even amid the pandemic – all because of my sexual orientation. Meanwhile, my chosen family – my partner and my friends – are there for me, without a question. Is the government idea of family flawed? Yes. Is it outdated? Most definitely. Ignorance is not blissful here,” Mehra said.
‘Culture Is What You Interpret It’
Union of India started its affidavit by claiming that same-sex marriage can’t be claimed as a fundamental right under the Indian Constitution. To substantiate it, a paragraph from the Navtej Johar judgment has been cited, which states that:
"“There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage though marriage is a union.”" - Supreme Court of India
Education consultant Vishwa and his partner Vivek are like any other married ‘millennial’ couple living in Gurugram. Only, their same-sex marriage is not recognised by the Indian law.
The ‘culture’ argument often cited by the Centre, opposing ‘their kind of marriage,’ “angers” him them the most.
“India does not have a set culture. India is a melting pot of many cultures. ‘We the people’ are by virtue of the Constitution of India; not by virtue of a common culture, common belief, or common race. We are India, we are not an Islamic or a Hindu rashtra. We are for all, by all, with all,” he said.
Gopalan said that while what culture is, depends on the interpretation, it does not necessarily have to go hand-in-hand with the law.
“One is the law. Another is culture. One always impacts the other. However, they don’t go in tandem. One takes longer to change. For example, you can have a strong legal system which protects the rights of people. Does that mean attitudes will change? Not always. That takes time. But the very fact that we have a strong law in place, it protects people,” she added.
However, Agarwal pointed that the government was bound to bring up ‘culture’ to deviate the legal aspect concerning the recognition of same-sex marriage.
"“I think these arguments were bound to come up. However, it’s important to not lose sight of the rights that the Constitution guarantees – of individual choice and autonomy. A law that follows a conception of culture or the Indian family which violates the rights of people cannot be sustained.”" - Akshat Agarwal
‘Some Day’: Young Indians Hopeful
But the young India is a hopeful India. Mehra explains that everyone should gear up for a long-haul battle.
“Recognising same-sex marriage might seem trivial today. Decriminalising Section 377 also seemed trivial one day. But members of the queer community today have come a long way in the last decade. We are geared to fight a good fight,” she added.
Twenty two-year-old queer rights activist Aditya Tiwari said that India freed “love” by decriminalising Section 377, but there’s more work to be done.
“In my opinion, same-sex marriages would be a step closer to equality. We decriminalized Section 377 and freed ‘love', the nation has seen many progressive decisions in terms of gay rights – but there’s so much work to be done. The future of India is a more vibrant, diverse, India. A queer India where there are different voices, and every voice is unique,” he added.
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