In India, Looking Beyond The Binary To A Spectrum

Context: A delay in the provision of marriage rights to same-sex couples would fall foul of constitutional guarantees and judicial directives.

Worldwide expansion of human rights: Towards establishing civil rights for LGBTQIA+ community  -

• Developments in South Africa: Civil Union Act, 2006 enabled voluntary union of two persons above 18 years of age by way of marriage.
• Developments in Australia: Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 provided equal entitlements for same-sex couples in matters of social security, employment and taxation.
• Landmark shift in American position: Case of Obergefell vs Hodges, 2015, Supreme Court decided that the fundamental right to marry is guaranteed to same-sex couples.
• Global trend: At least 29 countries in the world have legalised same-sex marriage.

Related shifts in India

• Recognition to transwomen and intersex persons: In Arunkumarand Sreeja vs The Inspector General of Registration and Ors case, 2019, the High Court of Madras held that the term ‘bride’ under Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women.
• Right to marry and privacy: In Shafin Jahan vs Asokan K.M. and Others case, 2018, the Supreme Court held that the right to choose and marry a partner was considered to be a constitutionally guaranteed freedom.
  • Court held that the “intimacies of marriage lie within a core zone of privacy, which is inviolable” and that “society has no role to play in determining our choice of partners”.
• Expanding the scope of marriage: Self-respect marriages legalised in Tamil Nadu (and subsequently, in Puducherry) through amendments to the Hindu Marriage Act, 1955.
  • Self-respect marriages are common among those who are part of the Dravidian Movement, only requires an exchange of rings or tying of mangal sutra, denounces all priests/religious symbols.

Conclusion:

• Any legal or statutory bar to same-sex and queer marriages must necessarily be held to be unconstitutional and specifically violative of Articles 14, 15 and 21 of the Constitution of India.
• Understanding the needs of the LGBTQIA+ community today, the law must now expand the institution of marriage to include all gender and sexual identities.