In India, the idea of marriage is associated with several patriarchal rituals/norms which act as an institution to strengthen existing norms. Upholding a traditional family structure and therefore, the perpetuation of heterosexual normativity is still prevalent. The existence of ‘honor killing’ shows that any deviance is met with dire consequences. This structure preserves bloodlines based on caste and creed. In this way, the primary aim of traditional marriage is still reproduction.
The State participates in this categorization of families, by recognizing only the patriarchal model of the family in the legal framework and excluding family structures which do not reflect heteronormativity, monogamy and patriarchal values. Though there is a glaring lack of recognition of non-normative families in the state’s definition of a family unit, diverse structures of intimate relationships have still found ways to exist in different parts of India.
One of such ways is Maitri karar, a practice prevalent in Gujarat. It is a semi-legal method in which a contractual agreement (also known as ‘friendship agreement’) of a platonic or intimate relationship is signed between two or more consenting people to secure their rights as partners. It gained traction around 1950s when the Hindu Marriage Act (HMA), 1955 was first enacted. The Act did not recognize the rights of the partners in non-marital or queer relationships and prohibited bigamy. Thus, Matri Karar started as a practice within the upper-middle-class community of Gujarat and was a way for men to maintain relationships with other women apart from their wives, which led to the exploitation of women.
Under the Civil Partnership Act, 2004 in the UK, same-sex couples can register a civil partnership that grants them same rights and obligations as married couples. However, in India, the rights of partners in a live-in relationship or in marriage is not recognized between queer individuals. So, while maitri karar originated as a patriarchal idea for married men to have multiple partners, over the last few years this exploitative contract system has mostly been used by inter-faith couples and same-sex partners to legitimise their relationships, which often do not enjoy social sanction. Recently, a lesbian couple was granted police protection, who used maitri karar to legitimise their co-habitation. While there was no explicit mention of the term ‘maitri karar’ in the court order, it helped the couple in proving their cohabitation and commitment to each other. The karar even set out the details on property ownership, inheritance and maintenance, in case of separation. Lack of recognition of queer couples rights has led to the increasing use of this practice.
Another example of non-normative families are the relationships and intimacies between queer, transgender, non-binary and intersex individuals, which the Transgender Persons (Protection of Rights) Act, 2019 fails to take into account. Section 2(c) of the Act defines a family as a group of persons who are related by blood, marriage or adoption. This definition excludes chosen family structures that are practised by queer and trans communities. Hijra communities form their own kinds of non-biological families and kinship when they are rejected by their natal families, known as Hijra Gharana’s. Hijra Gharanas have been recognized by Courts wherein Gurus take on the responsibility of care and protection of Chelas and in return Chelas show complete devotion to their Gurus. Similar structures of chosen families exist between trans, intersex and gender non-binary communities. While there is a history of non-acceptance in natal families of transgender persons, the Act forces them to choose between their natal families or rehabilitation centres by not recognising Hijra Gharanas [Sec. 2(c) read with Sec. 12(3)].
There has been a recorded presence of diverse family units in India, but the state has failed to recognize the same. Apart from the lack of recognition in the laws, family structures not recognised by society may not experience various other aspects of life such as marriage, adoption, health, tax benefits like other heteronormative families do. Thus, the legislature, through inclusionary regulations, needs to take into account the lived realities of relationships that exist beyond the traditional structures of family and love. Regulations that include diverse and complex structures of relationships, and make it possible for individuals to decide their legal beneficiaries/ nominees without taking blood ties into account.