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Right to marry? Statist paternalism towards adults has limits

With same sex couples approaching Delhi high court for legal sanctity of marriage to their relationships, how long can Centre oppose the idea that has gained gradual acceptance in progressive jurisdictions? For many people, marriage is the next logical step in formalising their relationships. And thus the legal fight now after Supreme Court decriminalised homosexual relationships in 2018.

Centre’s affidavit rejected a fundamental right to same sex marriage, noting its incompatibility with the “Indian family unit concept of a husband, a wife and children, which necessarily presuppose a biological man as ‘husband’, a biological woman as ‘wife’ and the children born out of the union between the two.” The heterosexual marital union described here is a limited interpretation of family. Marriage also works as a civil contract between consenting adults and as societal signalling by the couple. When formalised through religious rituals, marriage further acquires sacramental significance.

Denying these benefits of a marital union to couples whose relationship gained legal acceptance in 2018 can be interpreted as a denial of their fundamental rights to life with dignity, equality before law, and right against discrimination by the state on grounds of gender. The legal challenge against Section 377 IPC was preceded by a long struggle to humanise the plight of homosexual persons and reverse the colonisation of the Indian mind by Victorian morality, which effaced the much older Indian tradition of acceptance of gender and sexual diversity. Centre’s affidavit won’t be the last chapter of this epic struggle.

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This piece appeared as an editorial opinion in the print edition of The Times of India.



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