Author: Shruti Tejwani from Amity University, Chhattisgarh.
Co-author: Vyakhya Gomasta from Amity University, Chhattisgarh.
“Marriage should be between a spouse and a spouse, not a gender and a gender.”
-Hendrik Hertzberg
Three years ago, Section 377 was scrapped off the Indian Penal Code. Since then, things have drastically changed as our judiciary openly accepted the LGBTQ+ community. More people from the community have come out to their close ones. There have been open conversations about and with the community.
However, when we talk about social acceptance, privileges, and rights the community has, there isn't much of a change. Many people still view homosexuality as a disorder. As a result, same-sex couples are still fighting for their rights, legal legitimacy, and respect!
One of the reasons behind this discrimination is that our society is kin-based. Here, marriage is viewed as an arrangement to procreate, extend the family to bear heirs to the family property. In Indian society, family is considered the most important institution, which goes by “blood is thicker than water”.
This traditional picture of marriage became a social and a religious norm governing marriage in our society. Thus, rejecting the idea of a union that wouldn’t produce heirs to further the family’s name. Hence, when two people of the same sex claim to be attracted towards each other and to be in love people treat them to be mentally ill.
It would be an unfair and crude violation of human rights, in today’s era, to continue to accept this traditional thought of marriage. There are various instances of humiliation and hatred suffered by queer couples irrespective of place.
This picture depicts the miseries of queer couples which have now become a mere topic of political debates and campaigns.
Justice, equality, liberty, and fraternity form the pillars of our constitution. The Judiciary has upheld the Right to privacy as a fundamental right under Article 21 of the constitution. Considering the present scenario, however, these privileges are only available to those who adhere to the traditional societal norms. After section 377 was nullified, a lot of efforts have been made to legalize same-sex marriages but is it the ultimate solution to the problem at hand?
After half a decade of legalizing same-sex marriages, the discrimination against the L.G.B.T. community in America is heightened as now you are openly gay. In a nation like ours where reportedly most of the marriages are arranged and people are still facing a hard time in accepting inter-caste marriages, it wouldn’t be a surprise if the same situation like that of America’s is created. After all the freedom that comes with a choice, love and affection doesn’t fit into the historically built structure of caste, class, colour, and religion.
Another one of the many issues that needs to be addressed is the patriarchal nature of marriage. The existing family structure in India requires family wealth to be passed on to generations. Hence, forcing people (particularly women) to marry someone they feel is ‘right’. Our country has a religion-based social order. This views procreation as a necessity for the fulfilment of religious ceremonies such as marriage.
Moreover, to legalize same-sex marriages, laws governing marriage will have to be reframed to be gender-neutral. The legalization of same-sex marriage is portrayed as “redefining marriage” by many opponents. Laws like that of domestic violence and other laws on sexual harassment assume women to be a vulnerable party being exploited by the dominant. Therefore, changing their vocabulary to be gender-neutral could provide loopholes giving a chance to the perpetrator to victimize himself.
Indian society is a community-oriented society, where individualism is not supported in the least. Here, any representation of homosexuality is perceived as an effort to renounce tradition and encourage individualism. Hence, people view it as a menace to Indian society.
The right to marriage is a Human right. Indian Constitution has provided Article 21 within which the Right to Marry is a universal, but not fundamental right. Right to Marry is acknowledged at the global level, however, in India, there is no proper law for marriage rights. It is open to each person but the question remains unanswered. Whether it includes same-sex marriage?
It must be remembered that Indian society is patriarchal in nature and any person that has a different choice, which is not sanctioned by the 'order', scares them. As it is seen that legalizing homosexual marriage will destroy the idea of a traditional family and the holiness of marriage will succumb.
However, this shouldn't be a surprise when we say there is sufficient Hindu literature available that supports Homosexuality in Hinduism including same-sex marriages. Yes, it is true, Homosexuality has an old history in India. Everyone has heard about Ancient texts such as Rig Veda, right?
Even though these ancient texts date back almost 1500 BC, they contain sexual activities between women as signs of a feminine creation where sexuality was conditional on fertility and pleasure. In addition to that, various vestiges and sculptures represent these activities. Not only that, some historical testimonies of same-sex relationships are expressed in the Kamasutra, the persona of “Sikhandi” in Mahabharat, carvings of the temple at Khajuraho and much more.
But these events lost their importance with the arrival of Vedic Brahmanism, along with British Colonialism. Even though Manusmriti rendered severe punishments for women having a sexual relationship together, both sexual systems coincided, despite the variations in relative freedom and repression. Till British Colonialism destructed the concepts of homosexual expression.
Also, the British during the colonial era introduced 377 on the lines of The Buggery Act of 1533, passed during the reign of Henry VIII. It defined the unnatural sexual act as against the will of God. However, if we dig deeper into Indian history, we can find evidence of gender variance and non-heterosexuality in Hindu folk-lores and epics. Vishnu as Mohini (his only female avatar), procreated with Shiva to give birth to Lord Ayyappa. King Bhagiratha was born to two female parents, widowed Queens, whose birth was considered as a blessing and was socially accepted. Khajuraho temple in Madhya Pradesh, India famous for its architecture has displayed sculptures of sexual intercourse between the same sex.
Not only Hinduism, other religions such as Islam and Christianity also acknowledge homosexuality. Even if they traditionally acknowledge Homosexuality as a sin, one thing could be seen, that all the religions are admitting the fact that Homosexuality exists. This leads us to conclude that Homosexuality is not something unnatural. It could also be viewed in a way that balances nature and is natural.
In modern Indian society, sexuality is rarely discussed. But it should be taught and discussed from a primary level such as school. Legalising same-sex marriage has a long way to go, till then all efforts should be made to make Homosexuals feel comfortable and protected. Sex Education should be taught from the basic level of one's life. This way not only the LGBTQ+ community would feel protected and inclusive but also cis-gender people would know more about the community. Sex education would be a win-win situation for the people of India.
Crimes such as dowry, Sati, infanticides and child marriage are practices that stemmed from cultural dogma, but the Government yet took actions to stop them. The whole discussion of legalizing same-sex marriage is anything but a religious debate. One should understand the fact that Homosexuality is not a sin, but a way of pursuing happiness. Apart from irrational prejudice, no reason stops two gay people from getting married and enjoying the rights and protection which heterosexual couple take for granted. We are living in a world, which values a person's right to decide. And homosexuality is neither something new nor is against India's culture. It always existed in our culture. So, why can't same-sex couples have the legitimacy to their life?