By Kahini Iyer Feb. 26, 2021
Opposing same-sex marriage, the Centre argued that marriage, by definition, should only take place between a biological man and woman. But mythology and ancient texts are replete with stories of same-sex unions. And let’s not forget the temples of Khajuraho.
In September 2018, the Supreme Court of India made the landmark decision to strike down Sec 377 – a an 1861 law that criminalised homosexuality. The colonial-era law determined homosexuality to be an “unnatural offence” that was punishable by heavy imprisonment and fines for engaging in such “criminal” acts. Declaring Sec 377 to be unconstitutional, the Court ruled that homosexual people deserve equal autonomous rights. It was a day of celebration across the nation, especially for India’s LGBTQ+ citizens — a far cry from today, two years on, when the Delhi High Court is hearing a case on the legalisation of same-sex marriage.
The Centre has taken a stance against same-sex marriage, and is trying to dismiss a number of petitions asking for it to be recognised. On Thursday, the government argued that marriage, by definition, should only take place between a biological man and woman. According to them, the Indian family unit consists of husband, wife, and children, and therefore is “not comparable” with live-in same-sex relationships. They also argued that marriage goes beyond an individual concept and is a “societal value”, citing a balance of personal laws including those that take into account marriage beliefs in Islam and Christianity.
Of course, this is a discouraging blow for the queer community. Many have hoped to achieve this new milestone after the victory over the archaic Sec 377. Even more disappointing, though perhaps not surprising, is the nature of the rebuttal against same-sex marriage. By invoking a particular definition of marriage in Indian culture, the government is not only undermining the human rights legislation that has been passed prior to this judgment, it is also failing to acknowledge the country’s history of accepting the LGBTQ+ community and their relationships.
For one thing, the Centre’s conception of marriage between a biological man and woman goes against scores of Indian families that are not limited to a husband, wife, and children – single parents and child-free couples. It also flies in the face of another iconic Supreme Court judgment from 2014: The official recognition of the third gender. In view of the bench’s decision that trans, hijra, and third gender individuals are entitled to the same human rights, the government’s attempt to make marriage a function of biology restricts the scope of this ruling. Clearly, third gender people would be denied the legal and social benefits of marriage under this narrow view.
The government argued that marriage, by definition, should only take place between a biological man and woman.
Moreover, the Centre’s claim that same-sex unions fly in the face of Indian tradition does not hold up to scrutiny. During the debate on Sec 377, BBC Delhi noted that deeming queer rights as a Western import — similar to the Home Minister’s memorable remarks on “Indian” vs. “Western” -style human rights — is actually a popular myth.
Ironically, Sec 377 itself was a British phenomenon with roots in missionary colonialism and Christian ideologies of marriage being between a cis-het man and a woman. The most famous example of embracing various forms of sexuality in Hinduism is Madhya Pradesh’s Khajuraho Temples, which depict intimacy between same-sex partners, men and women In fact, there are also sculptures of all-women orgies.
The Khajuraho temples are not an exception. King Bhagirathi was born after two women made love to each other and one of them became pregnant, according to the poem Krittivasi Ramayan, composed by 15th century Bengali poet Krittibas. The Kama Sutra also mentions women marrying each other and raising children.
As for the Sabarimala temple in Kerala, the government has strongly campaigned against the admittance of women of menstruating age, who are customarily not allowed to enter this abode of Lord Ayyappa. Sabarimala is the most sacred temple for Ayyappa devotees, with millions making the pilgrimage there each year. However, the origin of Lord Ayyappa is one of several queer narratives that can be found in Hindu legends: He is born out of the union of Lord Shiva and Lord Vishnu, when the latter took the feminine avatar of Mohini.
As some historians posit, vilifying and ostracising queer people was a foreign concept in India until relatively recently
It is impossible to wrap our heads around this fascinating story if we go by today’s textbook understanding of marriage. Apart from homosexuality and gender fluidity in Hinduism, Muslim rulers like Mughal emperor Babur and Khilji’s son Mubarak were documented to openly have same-sex love interests, suggesting there was not as much stigma against such relationships in our history. As some historians posit, vilifying and ostracising queer people was a foreign concept in India until relatively recently — which is why the Centre’s argument that same-sex marriage goes against tradition and societal values is all the more arbitrary.
Kahini spends an embarrassing amount of time eating Chinese food and watching Netflix. For proof that she is living her #bestlife, follow her on Instagram @kahinii.