October 17, 2023, Mumbai: LGBTQ community members pose for a photo near a mural outside Humsafar Trust.
NEW DELHI — For a majority of people in our cultures, a marriage has a husband and a wife. According to many people, the absence of one entity out of these two does not make it a marriage.
That is exactly what the Supreme Court bench seems to have based its verdict on.
From what I understood, the apex court, with a 3:2 majority, is against the marriage or even legal union of people having the same gender. This in spite of the Chief Justice of India’s comment saying same sex union is “natural and old.” And there is nothing “urban and elite” about it.
According to the country’s top court, spouses have to be a man and a woman – whether they are cisgender (affirm the gender they are born with) or trans gender (not affirming to the gender they have been assigned at birth. However, being in a same sex relationship is neither forbidden nor illegal according to this judgement. So same-sex partners can cohabit, but will not have the same rights as a spouse.
They cannot adopt together as a couple and have no rights when it comes to property, inheritance or even insurance. The judges also refused to annul or tweak the provisions of the Special Marriage Act to include non-heterosexual couples within its fold.
The apex court said that queer couples have a right to cohabit without any threat of violence, coercion of interference. The judges also unanimously gave a go ahead to a high-powered committee proposed by the Union government to examine the concerns of same-sex couples and take corrective measures.
Gender rights activists are trying to find a silver lining in the verdict, as the apex court has tried to further decriminalize living with same-sex partners through it. As one of the judges has said that both heterosexual and homosexual unions have to be looked as "two sides of the same coin".
Again however one feels, the apex court has again stopped short of taking a clear stand by saying only government and parliament can make laws and legalize same-sex marriage.
No formality
Like many times in the past, the verdict seems to be majoritarian in more than one ways. It goes totally in favour of those opposing the marriage and legal sanctions of such a relationship.
While the honorable judges have not opposed same sex unions, at the same time they have provided no alternative to bring it under the purview of the law.
According to courts, there will be nothing formal about these relationships. So to my understanding till the parliament makes some regulations is that there will be no protection, no divorce proceedings, no alimony.
Consider the safety of partners in a relationship which is not protected by law.
The problem is paramount in a country like ours where for a majority of population, social sanction for a relationship comes only after marriage. There is also a minority perception which doesn’t believe in any kind of formal bond for two consenting adults to live together. This hearts’ calling, unfortunately, is not the view of majority in the country.
For our parents’ generation and even many in the current generation – only marriage can mean commitment and stability. Although I believe for a marriage to work, hearts have to be in harmony, that view might not be shared by society in general. If this verdict was otherwise, it would have given partners that place in society which is rightfully theirs and also given reasons for parents to agree to such unions.
Even if we don’t agree with this moralistic view or care for social approval, consider the safety of partners in a relationship which is not protected by law? When marriage is not legal, families can prevail at any time, putting the safety of partners in such a union at risk.
No safety blanket
What about domestic violence? Are we saying that violence and abuse are only prevalent in a marriage between opposite genders?
What about financial security? If a partner in a same-sex union has an untimely death and the living partner is not earning, how is depriving the dependent partner of financial security justified?
Same-sex couples will have no right to each others’ property even if they are together for a lifetime unless they leave a will. A same-sex couple will not be able to start a family legally. Single parent adoption will be difficult for them, one assumes.
So, one wonders what safety blanket the verdict is providing at all. Years ago when I was covering health and HIV/AIDS was a subject that deeply interested me, the discrimination against the LGBTQ+ community was jarring. Abuse and rape in the name of law was rampant. The community is more vocal now than it ever was in the country but it is only laws and court verdicts which can provide protection without loopholes.
A citizen of the country is free to do anything, live any life as long as he/she/they are not posing a threat to others but does this verdict give that right to same-sex couples? Will the verdict discourage closet behavior or forced marriages? The verdict puts the onus of living a safe life on the community again.
The honorable courts have to come out of the mode of verdicts aimed for the satisfaction of the majority and take some unpopular decisions for the larger good of some marginalized communities as well. This is, again, one of the strings of judgements where majority opinion wins over logic.
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