Queering the family: Tamil Nadu shows the way

On October 17, 2023, the Supreme Court of India delivered its much-awaited judgement in the case of Supriyo @ Supriya Chakraborty & Another Vs. Union of India, wherein it refused to recognise marriage equality for queer persons. The court was unanimous in its holding that there is no fundamental right to marry. However, it clarified that transgender persons within the binary of male and female who were interested in heterosexual marriages could marry under existing marriage laws. While a minority of the five-judge bench recognised a fundamental right to civil union and the right of queer parents to jointly adopt under secular adoption laws, the majority disagreed. All the judges however agreed that enabling marriage equality would require large-scale legislative changes to India’s family laws and thus the legislature was best suited to achieve this.

Two significant family law developments followed the Supriyo case. First, the state of Uttarakhand passed its own Uniform Civil Code (UCC) and second, the state of Tamil Nadu indicated that it would recognise queer relationships in the form of a Deed of Familial Association (DFA).

It should be noted that when it comes to family laws, both the Parliament and State Legislatures have the competence to enact or modify them – meaning that there can be central laws as well as state laws on the issue. In this context, Uttarakhand and Tamil Nadu present two contrasting case studies on family law reforms. While the former chose to enact a regressive UCC which falls short of its proclaimed goals of gender justice and uniformity, the latter attempted alignment with the Supriyo judgement by providing for a framework that would recognise queer relationships.

Tamil Nadu has indicated its intent to recognise queer relationships in its draft gender and sexual minority policy. While the final version of the policy is not in the public domain, key features of the draft policy have been noted by the Madras High Court in an order passed in November 2023. This policy was authored by a committee composed of queer persons and subject to several rounds of consultations with members of the queer communities, a welcome move which must inform the approach of other states. The draft policy provides for recommendations across several areas, including legal recognition of gender identity, employment, healthcare, education, law enforcement, and family. On the issue of family, the draft policy focuses on two core issues – protection of queer persons from natal family violence, and recognition of queer relationships through the DFA and other forms of existing relationship establishment methods.

Queering family: Beyond the heteronormative gaze

Family laws in India deem only the heterosexual marital relationship as worthy of legal recognition and rights. Thus, the legal imagination of family involves a male and a female person united by marriage and largely related to their children by biology. Consequently, intimacies that do not fit this narrow norm are either marginalised or invisibilised by the law. The marriage equality case attempted to expand the existing conception of family by demanding a right to marry for all, irrespective of gender identity or sexual orientation. However, barring a petition filed by a group of queer-feminists which argued for the recognition of atypical families, most petitions stuck to the age-old formula by treating the marital unit as the central feature of the family. In terms of strategy, such an approach makes sense as it is easier to demand that the court grant queer persons entry into a pre-existing institution as opposed to create new categories, an exercise which is beyond the court’s competence.

However, such an approach also suffers from several shortcomings because it participates in a project which hierarchises certain forms of intimacies over others by arguing that marriage must be elevated to the status of a fundamental right simply because it has historically been privileged by the State. In this context, the Supreme Court’s refusal to recognise marriage as a fundamental right is welcome as it keeps the door open for a claim of relational equality wherein intimacies beyond marriage are also deemed worthy of recognition and protection. A relational equality approach centres the autonomy of a person where access to rights is not contingent on the person marrying or partaking in a monogamous sexual and romantic relationship.

It is in this context that Tamil Nadu’s draft gender and sexual minority policy requires attention. The draft policy does not simply make a claim for marriage equality for queer persons but nudges the State to reimagine the family beyond kinship and marriage. By doing so it focuses on the functional conceptualisation of the family, namely what families should do, as opposed to the form of the family, namely what families should look like. A functional approach thus seeks to centre values of mutual care, love and dependence as definitive of a family, as opposed to only marriage and biological relatedness. The draft policy thus marks an entry into a radical possibility of family law expanding beyond its narrow normative foundations.

First, the draft policy recognises that natal families can be sites of violence and harassment for queer persons. The idea that the natal family is by default a loving and mutually supportive unit is challenged in light of lived experiences of queer persons. In fact, the family in India is in many ways an extension of the patriarchal State as it serves as a site of sexual division of labour, violence, and endogamy. The fact that marital rape is not criminalised, inter-caste marriages are rare, and honour killings are common in India speaks to this reality. An acknowledgement of this, accompanied by a duty on the State to provide safe homes and support to queer persons who want to escape their natal homes goes a long way in protecting their rights.

Second, the draft policy does not make a case for queer marriage but instead demands recognition of queer relationships through a DFA. Marriage laws in India suffer on several counts. They centre sexual relations as key to a valid marriage, prescribe cumbersome conditions for exit, and disregard the autonomy of parties by retaining outdated provisions such as restitution of conjugal rights. Instead of demanding entry into a flawed institution, the draft policy requires the State to legislate afresh on the DFA.

This gives the State an opportunity to reimagine the family beyond the conjugal unit, ensure a progressive family law framework, and opens doors for legal recognition also of non-marital, non-sexual and non-romantic intimacies. Finally, the draft policy requires the State to recognise ‘other forms of existing / legacy relationship establishment methods.’ While the language in the policy does not clarify the scope of other forms of relationships to be recognised, it requires the State to legally acknowledge and extend rights to family formulations that may fall outside the so-called norm. Consequently, atypical family formations such as Hijra or transgender households and queer community living arrangements may benefit from this policy. Such an approach to regulating the family benefits not just queer persons but persons of all genders and sexualities as it paves the way for relational equality in family laws.

A case for engagement

Historically, the state of Tamil Nadu has been an outlier when it comes to progressive family law reforms. For instance, in 1967, Tamil Nadu amended the Hindu Marriage Act, 1955 to recognise the concept of ‘self-respect marriages’ which did away with the requirement of Brahminical rituals associated with Hindu marriages. As the draft gender and sexual minority policy is yet to be finalised and placed in the public domain, one cannot foresee the manner in which queer families will be extended recognition. At the same time, it makes room for a progressive and radical approach to family law reforms, one which is informed by a queer politics where alternative ways of being, loving and living are deemed legitimate and worthy of protection and rights.

Following the Supriyo judgement the central government has set up a High-Powered Committee to look into rights of queer persons and persons in queer relationships. An engagement with this committee as well as state legislatures must draw from the progressive precedent that Tamil Nadu has set. While the journey to queering the family will no doubt be a long and difficult one, it is critical for us to demonstrate to the State that the same is not impossible.