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| AI-generated model for representation purposes. |
The question of homosexuality in the Indian context has been never explored for a various reasons, as a normal person there are many questions that the community needs to address first, or it is for the courts to decide on these issues, the questions are too important to be ignored, the questions are simple but yet very deeply intriguing and important to be solved in the Indian context without which there cannot be a resolution to this complex situation of 377 and marriage or civil union. While what the couple does in their bedroom, be it homo or heterosexual is their prerogative and that what exactly the abrogation of 377 was all about, but that has opened a new avenue in the discussion of the next big step once the abrogation was in place, the question of marriage was a question which was bound to come up, it was not a matter of if but a question of when, because the demand was legitimate and has been accepted in some 35 odd countries, the map of which is given below, the countries include, usa, Mexico, Canada and some European countries. While there are countries where marriage is not granted as marriage, it goes by the name of civil union. There is a fundamental difference between marriage and civil union.
While the
difference between the two is fundamentally legal, for a layman, there seems
to be no difference between the two. So, it seems, in theory, to be a perfect
tool to make the society accept the difference of choices and then gradually
make it common and acceptable to be with a same sex partner. People often also
make the argument that in western countries there seems to be a better acceptance
of the homosexual marriages but they tend to forget that the social order/
socio-cultural behavior is also starkly different from that of the south Asian
one, while the western counterpart is independent after s/he attain the age of
18, in south Asian countries we tend to live with our parents and grandparents.
There are instances where 4 generations live under one roof, in such a scenario
it is difficult to agree on the matter of which car the family has to buy hence
the question of marriage is no more a personal issue here it’s a collective
decision of the whole family where everyone applies his/her wisdom. In such a
case, the option of civil union can be the best as it gives an idea to society of how homosexual marriage is going to work, and also, slowly, society may even suggest good ideas to make the relationship work out.
However, there
are a few questions the community openly and wholeheartedly needs to discuss and
answer for the society, which dominantly rewards the hetero-normative behavior,
which are
The question
of domestic violence/role of the individual in the civil union.
Since we know
that in a heteronormative couple the accused is always the man and the victim
is always the woman, there can be debates about it as there are instances where
the accused is a woman and victim is man but those are small in number but not
insignificant. Taking the normal/ non exception cases into account, if we
believe that the women is always the victim, then in a homosexual couple who
will be identified as women or the victim?, so establishing a victim becomes
more difficult fundamentally in a homosexual couple which means this small
technical detail can be misused in large number of cases. If we, believe that
since the law can be misused it doesn’t mean the law shouldn't be made, that
right argument, yes the law indeed must be made to benefit those who need it, but in homosexual couples this can open a huge, never ending debate
and lead to frivolous litigation in the system as it has to follow the natural law of justice. We in India haven’t been
able to make marital rape a crime since it is difficult to establish when consent was absent between the couple and the word of women alone cannot
be taken into account as a married couple is bound to have physical relations
now and then. In the same way, establishing the fact of who was dominant and
who was submissive in a homosexual relationship is difficult, and without
establishing that, the case cannot move forward, as it may go against the basic
principle “99 culprits can escape but one innocent shouldn’t be punished”.
There is another inherent problem
with a homosexual or queer couple as the case may be, supposed that there are
two men, one is gay and the other is fluid gender which means that he may
identify himself as a women/man/queen/non-binary at certain time as and when he
feels so. In such a case the court or any individual cannot determine what was
the other person identifying himself when the act happened, the act can be of
any nature, namely assault of any nature physical or sexual, violence in public
or private space, discrimination, torture etc. this creates an additional
burden for the judiciary to first establish what the person was feeling then
establish the nature of the act and then the course of action that is needed to
be taken. This becomes not only difficult but adds layers of complexity to the
justice system, not to mention that it can be used as a delaying tactic, too.
The question
of adoption.
Once the above
hurdle is somehow cleared by the court of law or the legislature, there is
another one waiting, which is more important. The question of adoption is a
very crucial one, as under the current CARA guidelines, let us understand why
it's important. Firstly, only a male can adopt a male child. So same sex
adoption is allowed under current CARA guidelines, considering that there is a
queer/homosexual couple adopting a child, how can the state assure that there
is no child assault happening in a homosexual household as the couple is already
into same sex? The question becomes more relevant in light of the famous case of
(Anchorage Case (Allan John
Waters vs State Of Maharashtra on 23 July, 2008 & Childline India
Foundation & Anr vs Alan John Waters & Ors on 18 March, 2011) where
two men collectively not only assaulted boys sexually but also made a whole
business out of it! Can the state reassure that this won’t happen? Lesbian
couples, on the other hand, can opt for artificial insemination and become single mothers or mothers in a civil union. Then there is an argument that assault
happens in heterosexual couples as well, that is a very good argument on the
face of it, but then we need to dissect the conditions, the assault that happens
in heterosexual couples is often done by someone who is related to the famil,y
not mother and father. Barring some exceptions, where even fathers have assaulted their kids.
The chance of such instances happening in homosexual couples is
higher, as they are already interested in the same sex, and the chance that they may
assault a kid who is completely unrelated to them with no emotional bond whatsoever is higher.
There is another problem that is
widely argued and has already been acknowledged but not addressed properly.
Which is the growing up of a child and the effect of him/her psychology when
he/she is raised in a homosexual household, will the formative years be normal,
will the expectations of the child be same, will the child not be ostracized
and will s/he be not asked disparaging questions like s/he doesn’t have a
mom/dad, will the childhood be safe? Or normal? What about the child’s sexual
preferences when s/he grows up.?Because we now that children tend to learn what
they see, will the child subscribe to heteronormative behavior or will s/he be
homosexual just like his/her mom’s and dad’s ?.
While there are a few studies done in America but I highly doubt
those are relevant in the Indian sociological context, considering the diversity
and other things, we cannot compare apples with oranges. American society is just
open and they are done with children the moment they turn 18, till 12 are the
formative years of the child and till 18 is the career building age and hence,
in America its fine to assume that they won’t think about sex and partnership
till the age of 18 or maybe they have explored the sexual part till then. On
the other hand, in India sex is a taboo topic, many people don’t even know
anything about sex till they are married, the funny case by narrated by Dr
Tanya Narendra aka Dr cuterus that a couple, who was completely healthy could
not conceive for 4 years after marriage as the guy was trying to get her
pregnant by sticking his penis on his wife’s belly button, because the kid is
supposed to grow in belly.
Also, the problem in India is that we have unrealistic expectations
of relationships. We have always idealized our parents when we think of a
marriage or a successful marriage, and we also see this part 18 years 18-year-old, till
our adulthood. So, to compare the American society and impose the idea of normal behavior within a household with a heterosexual couple is not the right option, logically.
While the famous theory of men born after WWII being more feminine
and soft is being proved by many researches, and that happened because all the
men were either killed or were in the war and the boys were left with their
mothers, there was no man to look around for them to teach them how to be a man
and hence the women teaches them to be a man who is docile and much softer and
the result the aggression came down and lead to a very different world, but
also it gave raise to men who went on to please women than just be confident
around them giving raise to what is today called as SIMPING which is the docile
yes man or the nice guy syndrome (you can read this in a self-help book called
no more Mr nice guy).
So it is evident that for a healthy child to develop, he must have both the mother and father around to teach him many things., We say
that elephants need to be in their herd so they can teach the newborn how to be
an elephant. Then why don’t we apply the same standards to humans? Why do we
want to bar the new generation from this privilege? Why can’t we keep boys with boys
and girls with girls who fit in the heteronormative behavior?
Kids growing up look up to their parents and then learn from their behavior,
to say that a queer couple can raise a kid with a normal sexual behavior which
subscribes to the hetero-normative behavior is a fallacy a kid needs both
mother and fatherly figure for a better role model and complete development.
There is enough evidence and research to show what happens when a child has a single parent; there are umpteen case studies on it in American society,
all those stains cannot be washed with a single research by the American Sociological Association (read the full report here).
The argument is a malarkey in the world of arguments when counter evidence is
already present in plenty (Parasar, Ashok & Sharma, Ajay & Maurya, Ajay.
(2018). The Effect of Single Parents and Both Parents Family on Emotional and
Behavioural Problems.)
While the growth of children is a matter for another day, let's just
not digress with the topic; right now, just stick to the topic of the problems
that we were discussing.
The question
of Inheritance
While this as
been a bone of contention weather who is the next of kin of the couple, well
one may argue that the adopted child shall bear all the inheritance and that
may be the end of discussion but no, that’s the starting of the problem, we are assuming that the couple will get a child to adopt, while
the CARA guidelines are clear that only a married couple can adopt a child that
too after a brief period (in this case 5 years) after marriage has passed and
the couple is not fit for conception only then shall they go for adoption.
There are two scenarios in this.
Case 1Thehe
couple gets adoption rights for a child and transfers the property/ inheritance
to the child. This is the best-case scenario.
Case 2: Let's say
that no child is adopted by the couple and the couple decides to separate; in
such a case, who will enjoy the inheritance? In such a case where both the
partners are earning and have huge inheritance and die without a successor then
the next of the kin can lay claim on the inheritance, it can be brother/
brother’s child, or sister’s child, we need a clear definition of next of kin/
relative related by blood so the inheritance transfer can be smooth.
In case of the
next of kin, there can be a dispute among the relatives of both partners
since they are legally entitled to the inheritance. Such problems are to be
addressed.
So it seems like
the option of civil union is a very generous option to familiarize the concept
of same sex marriage in India and slowly but surely Indian society will accept
it sooner or later, but for that to happen the Indian queer community must accept
the offer and make use of it.
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