State legislatures can do what the SC could not

The Supreme Court recently delivered its much-awaited judgement on the matter of marriage equality. It declared that there is no fundamental right to marry under the Indian Constitution and upheld the constitutionality of the Special Marriage Act, 1954, the Foreign Marriage Act, 1969, and certain adoption regulations, even though they exclude queer individuals. However, it clarified that transgender individuals who are in heterosexual relationships can marry under both secular and personal marriage laws.

The core of the Court’s reasoning was its acknowledgement that it lacked the institutional capacity to provide the remedies sought. The Court noted that achieving marriage equality required a comprehensive reform of family laws across all spheres. This is because existing marriage laws, as well as laws pertaining to parent-child relations and succession, assume that everyone is heterosexual or identifies within the binary gender of male or female. Consequently, amending existing marriage laws or enacting new, queer-inclusive family laws falls under the jurisdiction of the legislature.

In response to the Union’s own representation, the Court directed the establishment of a committee to identify and determine the scope of entitlements that will be available to queer persons in unions. However, there is a lack of clarity regarding the committee’s membership, time lines, and the implementation status of its recommendations. Given the upcoming Assembly elections and the lengthy and contentious journey leading to the enactment of the Transgender Persons (Protection of Rights) Act, 2019, one could argue that setting up this committee will not be a priority. The Court also left it to the Union and state legislatures to reform or enact family laws to realise marriage equality, clarifying that state legislatures have the competence to do so.

The question that arises is: what can state legislatures do to ensure the inclusion of queer persons within family laws? The answer is - a lot.

States and Family Law

The Constitution prescribes the legislative competence of the Union and State legislatures in the seventh schedule. While the Union and state legislatures can make laws on subjects in the Union and state lists, respectively, both have the competence to make laws on subjects in the concurrent list. The subject of family laws, including marriage, features in the concurrent list. This means that the state legislature can, either by amending central laws on marriage or through the enactment of separate laws, ensure marriage equality.

There are several examples of state legislatures reforming and modifying family laws to reflect their policy priorities. For instance, Tamil Nadu amended the Hindu Marriage Act, 1955, via the Hindu Marriage (Tamil Nadu Amendment) Act, 1967, to recognise the concept of ‘self-respect’ marriages. Self-respect marriages did away with Brahminical rituals associated with Hindu marriages, such as the presence of priests and saptapadi, allowing individuals to solemnise their marriage by declaring each other as husband and wife in the presence of witnesses of their choice.

The State of Kerala, via the Kerala Joint Family (Abolition) Act, 1976, abolished the concept of Hindu joint family property, which is a central feature of the Hindu Succession Act, 1956, to ensure women had equal rights to ancestral property. Other states, such as Tamil Nadu and Karnataka, have made unmarried women equal coparceners by granting daughters the same rights as sons in ancestral property via state amendments to the Hindu Succession Act. It was only much later that the Parliament, via the Hindu Succession (Amendment) Act, 2005, recognised daughters as equal coparceners.

These examples demonstrate that state legislatures can and have played an important role in reforming family laws to promote an anti-caste vision and uphold gender justice. They can do the same to ensure queer inclusion.

The state legislature can amend existing family laws, enact queer-inclusive family laws, or do a mix of both. However, such an exercise cannot be reduced to gender-neutral drafting. This is because family laws, as pointed out in the judgement, account for the vulnerability of women in heterosexual marriages by providing protection to them through gendered provisions on maintenance, alimony, and divorce.

So, what can a queer, inclusive family law regime look like? First, such a regime must ensure that everyone has the right to marry, acquire legal parenthood, and have inheritance rights regardless of gender identity or sexual orientation. Second, provisions on maintenance, prohibited relationships, alimony, and divorce must be reflective of queer partnerships. This could be achieved by doing away with degrees of prohibited relationships and ensuring that the principles informing provisions on maintenance, alimony, and divorce protect the vulnerable party in the relationship. Third, such a regime must reflect queer realities, given that many queer persons form atypical families that are not defined by kinship or marriage.

The need to recognise chosen or atypical families was reflected in a petition filed by a group of queer feminists in the case. This may be achieved by adopting a functional view of the family that focuses on what families do and not what they should look like. Such an approach challenges the limited imagination of the family as defined by only marriage and blood by also considering values of mutual love, care, and dependence. Extending legal recognition to non-conjugal intimacies and queer family structures prevalent in the state are steps towards this end. Finally, and most importantly, such an exercise must be preceded by wide-scale consultations and deliberations and ensure the active participation of a plurality of queer voices.

As Karnataka was one of the first states to ensure the constitutional rights of transgender persons through the Karnataka State Policy on
Transgender Persons, 2017, it should continue to take the lead and set an example for other states to follow suit when it comes to queer inclusion in family laws.

(The writer is Senior Resident Fellow at Vidhi Centre for Legal Policy)