Plea in Delhi HC opposes legalisation of same-sex marriages
- A plea before the Delhi High Court sought that same-sex marriages should not be permitted under the Hindu Marriage Act.
- It states that any intervention by a “secular state” in the matter will be an “intrusion into the religious right of Hindus”.
Hindu Marriage Act, 1955
- The Hindu marriage Act is an Act of the Parliament of India enacted in 1955.
- Three other important acts were also enacted as part of the Hindu Code Bills during this time:
- The Hindu Succession Act (1956),
- The Hindu Minority and Guardianship Act (1956),
- The Hindu Adoptions and Maintenance Act (1956).
- The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others.
- Besides amending and codifying Sastrik Law, it also included separation and divorce, which also exist in Sastrik Law.
- This enactment brought uniformity of law for all sections of Hindus.
- In India there are religion-specific civil codes that separately govern adherents of certain other religions.
- Section 7 of the Hindu Marriage Act recognises the ceremonies and customs of marriage.
- As stated in Section 8 of the Act, the state government may make rules for the registration of Hindu marriages.
This Act applies:
- To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;
- To any person who is a Buddhist, Jain or Sikh by religion; and
- To any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
- Does not recognise same-sex marriage: India does not recognise same-sex marriage or civil unions.
- No unified marriage law: In fact, it does not possess a unified marriage law
- Laws based on community or religion: Every Indian citizen has the right to choose which law will apply to them based on their community or religion.
- Complications: Although marriage is legislated at the federal level, the existence of multiple marriage laws complicates the issue.
- No explicit definition of marriage: None of these codified marriage acts explicitly defines marriage as between a man and a woman; neither do these acts explicitly prohibit same-sex unions.
- Uniform Civil Code: In 2017, a draft of a Uniform Civil Code to legalise same-sex marriage was published.
- Shakti Vahini v. Union of India: The Indian Supreme Court, in the case of Shakti Vahini v. Union of India, held that an adult has the fundamental right to marry a person of their choice.
Arguments in Favour:
- Consensual homosexual sex no more a crime: In 2018, the Supreme Court overturned a previous judgment and ruled that consensual homosexual sex was not a criminal offence. However, same-sex marriages are yet to be recognised in the country.
- Hindu Marriage Act: There was nothing in the HMA that mandated that marriage should take place only between a Hindu man and a Hindu woman.
- Section 5 of the HMA Act clearly lays down that marriage can be performed between ‘any two Hindus’ under the Act.
- Lack of benefits: there are many benefits that would otherwise be available to heterosexual married couples that are not available to them
- Violation of the right to equality: The plea argued that the prohibition of marriage of LGBT people on the basis of sexual orientation and gender identity was an absolute discrimination towards them and also violative of the right to equality as granted by the Constitution.
- Global scenario: Naming various countries such as the U.S., Australia, Germany, Canada, Spain, South Africa, Brazil, and England, where same-sex marriages are legal, “right to marry is a part of ‘right to life’ under Article 21 of the Constitution”.
Arguments against the issue:
- Rituals: Same sex marriage not be permitted under the Hindu Marriage Act as in Hinduism tying of nuptial knot is allowed only between a man and woman since times immemorial.
- Religious texts and sentimental values: Marriages in societies like Hindu are very much part of their religion and derived and associated with their divine entities as well as religious texts and thereby hold significant sentimental values.
- Impact on other aspects: This change will impact other aspects like inheritance, adoptance and religious ecosystem of the Hindu society that are critically hinged on the religious sanskar of vivah.
- As per vedas (the sourcebook of Hinduism): marriage happens only between a male and a female to fulfil certain worldly and religious duties.
- In fact, most veda mantras recited during Hindu vivah or describing the ritual of marriage refer to a biological male and a biological female.