In this time of hyper-sensationalism, meaningful events often get overshadowed by stories of less substance but more appeal. Modern media has fuelled this detrimental trend, sometimes enabled by those who cultivate ties with it to garner attention. So, while news of queer marriage equality made headlines as a result of a poorly conceived effort at litigating this issue before the Supreme Court, a significant moment in the same court three months ago failed to receive even the slightest attention.
In March 2024, the Supreme Court issued a ruling in Devu G Nair v Kerala & Ors about two adult women in an intimate relationship, allegedly being rented asunder by one of their parents. In highlighting the realities that confront queer people too often, the court expressed what it had imbibed in 2023 while hearing one of the interventions made in the marriage equality case (apart from important guidelines, it issued on how scrupulously courts should handle such matters):
“[T]he concept of ‘family’ is not limited to the natal family but also encompasses a person’s chosen family. This is true for all persons. However, it has gained heightened significance for LGBTQ+ persons on account of the violence and lack of safety that they may experience at the hands of their natal family. When faced with humiliation, indignity, and even violence, people look to their partners and friends who become their chosen family. These chosen families often outlast natal families as a source of immeasurable support, love, mutual aid, and social respect.”
It is this idea that many in the queer community have argued is the legal framework that must be granted to us: one which recognises that the assumption of the natal family being respectful of us, is a grave misunderstanding and that our lives should be vested with the respect, dignity and security that we inherently deserve.
As we celebrate Queer Pride this month, we must reimagine and recast our claims to socio-economic rights to challenge conventional constructs of the social structure. It is the only way in which the needs of all of us can be catered to. In seeking legal recognition of chosen families, the queer community’s priorities can be fully addressed. While the rights that those in intimate coupledom should obtain are necessary, those who seek to consolidate our legal rights through other relationships, must also not be denied.
This may seem like a far-fetched notion, but it is not. In certain contexts, the law already recognises associations not defined by birth, marriage or adoption, thereby giving less importance to these criteria for relationship recognition. Take the Mental Healthcare Act, 2017, which empowers one with the right to nominate any person to give effect to advance directives related to one’s mental healthcare treatment in the event of incapacity. The Uttar Pradesh Revenue Code, 2006 as amended in 2020, recognises third gender persons as partners for succession to agricultural land. Indeed, the idea of a chosen family has even been accepted informally and practised non-controversially for long, as seen with hijra gharanas ( though their endorsement through law remains inconsistent). In Deepika Singh v Central Administrative Tribunal (2022), the Supreme Court recognised that in certain relationships “manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation.”
Envisaging a legal framework that includes a broader canvas of people and their lived realities is not such a stretch of the imagination. We can learn from jurisdictions that have already done so, such as Hawaii and Massachusetts in the United States. It would entail recognising domestic partnerships with certain characteristics – those formed by competent adults; of mutual support and commitment; between those who could cohabit, are unmarried, not blood relatives, and consider themselves to be a family.
Being queer bucks the current dominant trends of majoritarianism, conformism, and unquestioned compliance. At the heart of being queer is to celebrate difference, and be sensitive to the realities of the marginalised. Very, very few of the millions of us in the LGBTQ+ community in India have the luxury of being in romantic, intimate relationships, and even fewer have the good fortune of imagining the security of shelter and stability. Indeed, the queer community in India has within it several who are single senior citizens. For many of them, the security of marriage fails to address the preoccupations of ageing. And so, when we seek emancipation, our imagination should not be limited to that institution or civil partnerships.
We have a new parliament now, one which comprises those who serve us from political parties whose manifestos espouse queer equality. Others have trumpeted “sabka saath, sabka vikas” as their brand. It’s time for them to walk their talk.
Indeed, there is a means through which to do so. Pursuant to the Supreme Court’s directive in the marriage equality case, the Indian government constituted a committee to “examine the various issues relating to queer community” through an order in April 2024. It is incumbent on such a committee to fully grasp the socio-economic realities of India’s queer people, and consider ways in which legal rights are bestowed on them in all their complexity. This must include offering legislative solutions that ensure equality in all manner of relationships – chosen families or queer couples. It would be not only the necessary thing to do to effect change, but also unique in the world. Instead of aping Western trajectories of queer citizenship that have failed to speak for all in those LGBTQ+ communities, India’s evolution would be more inclusive and certainly more meaningful.
The writer is Head, Centre for Health Equity, Law & Policy.
