The way forward for the queer community, perhaps, is not to insist on a right to marry but to challenge laws that privilege marriage over other forms of familial and kinship bonds.
The recent judgment of the Indian Supreme Court on marriage equality was, without a doubt, a disappointment for India’s queer community. With a 3:2 majority, the Supreme Court held that queer couples in non-heterosexual relationships do not have a fundamental right to marry and denied legal recognition to their relationships. The court’s judgment placed heterosexuality at the centre of marital relationships by holding that marriage between persons of opposite gender is the only valid form of marriage under Indian law.
Thus, while transgender persons identifying within the gender binary who are in heterosexual relationships are entitled to marry, queer couples who do not find themselves in what can be classified as heterosexual relationships are left without any legal remedy.
But perhaps in rejecting that there is any fundamental right to marry under the Constitution for queer couples or otherwise, the court has opened a portal (especially in the minority opinions) for re-imagining the existence of what were understood to be matrimonial entitlements (like succession rights, adoption, guardianship, financial entitlements that accrue to spouses etc.) beyond marriage. We discuss the implications of this possibility.
The petitioners had primarily mounted a challenge to the provisions of the Special Marriage Act, 1954 arguing that the non-recognition of non-heterosexual marriages under the Act violated their fundamental right to marry and discriminated against them on the basis of sexual orientation. An important prong of the petitioners’ argument was that they are denied the matrimonial benefits listed above.
