Marriage equality is an idea whose time has come

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Marriage, insists the government of India through solicitor general Tushar Mehta, can only take place between a biological man and a biological woman. It is a religious and social construct over which Parliament and not the courts have jurisdiction. Allowing marriage equality will cause “complete havoc” with the country’s personal laws.

At the time of writing, the Supreme Court is yet to announce the names of the five judges of the Constitution bench that will begin to hear arguments on Tuesday from as many as 18 petitions that have been clubbed together. But here’s what we know so far:

Taking positions

The petitions are challenging various legal provisions under which marriages in India take place. These include the Special Marriage act, Hindu Marriage act, Foreign Marriage act, citizenship act, and adoption act.

Some petitions have been filed by lesbian couples, others by gay men and still others by trans activists at different points of time and in different high courts. In January, the Supreme Court decided to club these petitions that more or less ask for the same thing: Equal marriage rights for all citizens regardless of their sexual orientation.

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Media are talking about the petitions as a demand for same-sex marriage. They are, more accurately, about marriage equality. At least one is not even so much about marriage but for the right for adult individuals to choose their own families, particularly when they face horrific violence and discrimination from their natal (birth) families.

The central government is absolutely opposed to granting the status of a legally recognized marriage to the LGBTQI community. Its opposition is supported by such organisations as the RSS (marriage is a sacrament), the Jamiat-Ulama-i-Hind (same-sex marriage is an assault) and the National Commission for the Protection of Child Rights (same-sex couples should not adopt). The last two have filed interventions in court.

Rooting for equal marriage rights are the Delhi Commission for the Protection of Child Rights (same-sex couples should have adoption and succession rights) and the Indian Psychiatric Society (the LGBTQI community should have the same rights as all citizens).

The back story

(Illustration: Dominic Xavier/

The demand for marriage equality is an inevitable outcome of the Supreme Court’s landmark 2018 judgement in the Navtej Singh Johar case that decriminalized the infamous section 377, a colonial-era hangover that made sex against the “order of nature” a criminal act.

Brushing aside objections on the grounds of social and religious morality, the apex court asserted the primacy of “constitutional morality”.

The court had already recognized what it called the “third gender” with NALSA in 2014. In 2017, while ruling on the right to privacy, it said sexual orientation is an inherent part of individual’s right to privacy.

The government is arguing that decriminalizing homosexual activity in Navtej Singh Johar does not confer on the LGBTQI community the right to marry. The petitioners argue that the right to marry is the logical follow-up to Navtej Singh Johar.

Why marriage equality matters

First, there’s the matter of rights. Marriage, says Saurabh Kirpal, a gay lawyer who is appearing for one of the petitioners – a gay couple that has been in a relationship for 17 years and are raising two children together — not only confers social legitimacy to a couple, but also grants substantive rights from tax breaks to inheritance and adoption to spouses.

For instance, a single man or a single woman can adopt a child. But only married couples can jointly adopt. A spouse is entitled to inheritance even if there is no will. An unmarried partner is not. In matters of employment—provident fund, paternal leave—unmarried partners do not get benefits. And on it goes….

Second, is the matter of protection by the law. Vrinda Grover, who is representing lesbian, bisexual, trans and intersex (LBTI) petitioners, says lesbian and trans people are “subject to unbelievable levels of violence much of it from the family itself”.

This violence could include physical beatings as well as “treatments” like conversion therapy, forced marriage, and even “corrective” rape. Far from protecting them, the police often act as accomplices.

These citizens are most in need of the law’s protection. Without a legally-recognised marriage to people of their choice, they remain at the mercy of their natal families.

And third is the fact that failure by the state to extend the same right to marry that is available to heterosexual couples relegates the LGBTQI community to the status of lesser citizens.

Modern family

In August last year, a two-judge bench including chief justice DY Chandrachud and AS Bopanna while hearing a case on maternity leave benefits said same-sex couples and unmarried heterosexual partners are entitled to legal protections and all the benefits under social welfare legislation.

Later that week at a public function, justice Chandrachud spoke of how the decriminalization of homosexuality in law alone could not guarantee equality which had to be reflected in the home, workplace and public spaces.

But outside the courtrooms, Indian society is changing. Live-in relationships, heterosexual and otherwise; the expansion of the idea of family to include intimate friends; adoption and surrogacy by single people are just some of the ways.

Ziya Paval (top) and Zahad. (Image source: Ziya Paval/ Instagram)

In Kerala, a trans couple whose pregnancy pictures made a splash on social media proudly announced the birth of their baby earlier this year. Ziya Paval and Zahad’s baby was born a month ahead of the due date. The baby’s name and gender was not revealed.

In numbers

At 67,200 cases, Uttar Pradesh is the state with the most number of pending POCSO (protection of children from sexual offences) cases. That’s 28% of all pending POCSO cases in the country. One of the provisions of the 2012 law was to set up fast-track courts that would reach a verdict within a year. But the pendency of POCSO cases has gone up by over 170% since 2016.

Source: Law minister Kiren Rijiju in the budget session of Parliament reported here.

The long(ish) read

Who killed 26-year-old Agnes Tirop soon after she set a world record in 2021 at the women-only 10 km road race in the small town of Iten in Kenya’s Great Rift Valley?

Famous as the world’s running capital where elite athletes, including Eliud Kipchoge, train, Tirop’s murder in Iten was not an isolated crime but a larger pattern of domestic violence, sometimes with deadly consequences, against successful women runners who are bringing in huge amounts of prize money.

Read the story in the New Yorker here.

Can’t make this up

After setting up a panel to examine interfaith marriages where not a single complaint has been received in the three months since its existence, Maharashtra’s women and child welfare minister Mangal Prabhat Lodha of the BJP has come up with a new idea. In a letter to the prime minister, Lodha has suggested that widows should be referred to as “Ganga Bhagirathis” to “accord them respect in the state”.

Umm, what? How? According respect to widows will need more than a cosmetic name change. But who is going to tell the minister that?

News you may have missed

Yes, single women work. Yes, they can adopt: Bombay high court

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Calling a district court’s decision to reject the plea of a woman to adopt her sister’s child because she was a working woman, a “medieval” way of thinking, Justice Gauri Godse of the Bombay high court said that a single parent, for obvious reasons, would necessarily be a working parent. And, yes, she could adopt.

Innocent? Playful? Sorry, Dalai Lama, it’s abuse

The Tibetan spiritual leader has apologised for a video that shows him kissing a young boy on the mouth and then sticking his tongue out and telling him: “You can also suck my tongue”. The 87-year-old Dalai Lama who has 19 million followers on Twitter apologised to the boy and his family “for the hurt his words may have caused”. In what sounds like a lame excuse for what is unambiguously inappropriate sexual behaviour, His Holiness, we are told, “often teases people he meets in an innocent and playful way.” Meanwhile, a top leader of the central Tibetan authority in India has said “pro Chinese sources” were seeking to defame the image of the spiritual leader.

And the good news…

Two rounds of applause to the Supreme Court. The first for asking the government on Monday to frame a menstrual hygiene policy for schools that might include free sanitary napkins and products for students, proper disposal mechanisms and more washrooms for girls. And the second, for making the court a more inclusive space for the LGBTQ community by setting up nine universal restrooms and making the online appearance portal for lawyers gender neutral.


Image source: The New York Times

In the US, a tiny reprieve for mifepristone that was virtually banned by a ruling by a Texas judge. In an 11th hour ruling, the Supreme Court temporarily halted the Texas court restriction so that arguments can be presented in court.

The drug, one of two used to induce abortions, will continue to be available and has, since its approval by the FDA 20 years ago, been used by 5.6 million Americans. Abortion pills are also the most common method of ending pregnancies and account for more than half of all US abortions.

The New York Times has more on what might happen if the Texas ruling is eventually upheld. Read here.

In other depressing abortion news out of America, Florida governor Ron DeSantis has signed a bill that would ban most abortions after just six weeks of pregnancy.

Gen Z women are swearing off sexreports The Insider. Frustrated with hook-ups that leave them unhappy and disrespected, a growing number of young women are embarking on celibacy journeys, taken their cue from TikTok where #celibacyjourney has nearly 40 million views. A 2021 study found that 18-23 year-olds were having significantly less sex than a decade ago.

In Germany, the justice minister has announced plans to relax the country’s strict rules on family names and allow, for example, couples to take double-barrelled surnames and pass them on to their children, reports AP News. As things stand, one partner in a married couple (but not both) can add the other partner’s name, but the children can’t take both surnames.

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That’s it for this week. Do you have a tip or information on gender-related developments that you’d like to share? Write to me at:
Produced by Sukoon Wadhawan
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