Marriage in India is a fraught issue, arranged between families and plagued by questions of caste, class and religion. Religious personal laws govern marriage, a remnant of British colonial rule, eagerly adapted to postcolonial Indian modernity. Despite the existence of the secular Special Marriage Act (SMA), legal structures often further police marriage.  Legal provisions such as habeas corpus are also used by families to ‘recover’ their adult daughters who have ‘run away’ in order to marry or live with a partner of their choice, thus curtailing marital and sexual autonomy. Similarly, attempts to circumvent religio-legal barriers through conversion are often met with versatile judicial manoeuvres curtailing such transgressive marriages. Recently, a spate of anti-conversion laws have been enacted fuelling the rhetoric of ‘love jihad’ against inter-religious marriages.

Within this restrictive socio-legal milieu, what role does queering marriage law in India play? The concept of queering refers to the practice of challenging identity categories and disciplinary boundaries in order to unsettle hegemonic and oppressive notions of ‘normal’ towards greater inclusivity. Although the marriage equality case, argued before the Indian Supreme Court in 2023, did not challenge the heteronormative institution of marriage itself, simply seeking recognition of queer marriage can be seen as an initial step in a long process of ‘queering’ by challenging the framework of marriage law.

The 2023 Supreme Court hearing thus challenged existing legal regimes in India in multiple ways. Among other arguments, petitioners challenged the secular SMA as discriminatory against non-heterosexual couples; challenged the notification provision within the SMA which requires couples to provide written notice to the district Marriage Officer, which is then displayed publicly, soliciting any legal objections to the marriage. This provision acts as a barrier even to heterosexual couples marrying against their family’s wishes. It also challenged the law of adoption as discriminatory for including provisions that effectively bar queer couples from adopting and raised questions about the primacy of biological family which mediates access to healthcare, inheritance, insurance and financial autonomy, adversely affecting queer folk who face violence and discrimination within biological families. Though the Supreme Court judgment declined to read gender neutral rights into the existing legal framework, it was constrained to provide its reasoning for doing so. And it is this reasoning that is particularly illuminating, illustrating the radical nature of the challenge that queer marriage poses to existing legal structures in India.

The judgment dwelt on questions of whether marriage was indeed a fundamental right, whether legislative intent would be served by including queer marriage under the SMA, whether the interest of the child would be served if queer parents could adopt and, centrally, whether the judiciary was the appropriate forum for seeking marriage equality. However, one of its key lines of reasoning rested on existing gendered provisions within the SMA and the danger of losing those hard-won protections for women. This raised the question: in the context of a queer marriage, who would these provisions apply to?

The court’s reasoning thus inadvertently highlighted the centrality of gender unequal roles within marriage. For example, the age of consent is 18 years for women and 21 for men, upholding an asymmetry in life experience and entrenching gendered roles. Further, while the court was rightly hesitant to alter gendered protections – such as gendered provisions for alimony and regarding domestic violence – these issues demonstrate the radical nature of the challenge marriage equality poses to marriage laws. Taking these issues seriously, would force law to grapple with questions of financial, mental and physical abuse outside the neat categories of male (abuser) and female (abused).

The judgment noted that several other statutes’ operation would be affected by making marriage gender equal. Though it did not explicitly point this out, these statutes include the recently enacted ‘Love Jihad’ laws. Additionally, the particular use of Habeas Corpus along with statutory rape provisions to criminalize young men and ‘recover’ young women from unions of their choice against their families’ wishes would also be affected. Thus, making marriage gender neutral would result in several legal avenues for policing intimacy being lost to familial networks of control.

In the course of the Marriage Equality judgment, the Supreme Court also upheld the right of trans people to marry, as secured through the Arunkumar judgment in the Madras High Court in 2019, under the Hindu Marriage Act. As several commentators have argued, this was possible because of several preceding judgments, including the NALSA judgment and the passage of the Transgender Persons (Protection of Rights) Act, 2019. Arguably, the space for securing rights is hard-won and incremental, through repeated petitioning and legal manoeuvres.

As the messy history of personal law bears out, the law both entrenches systems of power and provides tools and means to challenge them. For instance, Christian women in India secured divorce rights denied to them under the law through the judiciary. Similarly, under Muslim law, women were granted more secure maintenance rights through creative interpretation by the judiciary. The securing of marriage rights for trans people (in apparently heterosexual marriages) can be seen as a similar instance of incremental change in the longer process of queering.

While the judgment did not secure marriage equality, could the process of seeking it itself be seen as a queering that challenges the policing of marriage, its gendered nature and creates ways to democratize family?