Can same sex marriage be held valid under Hindu Marriage Act?

Section 5 of Hindu Marriage Act reads as “bridegroom has completed age of 21 year and bride, age of 18 years at the time of the marriage”. Provision’s main essence is age and not gender

Representative Photo
Representative Photo

Tanish Arora

The Madras High Court, in the case of Arun Kumar versus Inspector General of Registration (2019), analysed the legitimacy of cis-trans marriage with regards to the Hindu Marriage Act, 1955 specifically and held that the same would be legally sound. For the purposes of this, the court had taken into consideration Section 5 of the Hindu Marriage Act, and analysed whether the term ‘bride’ would include a transgendered woman or not.

While the judgement mostly focuses on whether a transgendered person can marry a cis-gender person, it can also help us understand whether same sex marriages would be valid under the Hindu Marriage Act or not.

While homosexuality, which had been considered a sin and hence deemed an offence under Section 377 of the Indian Penal Code [IPC], was decriminalized by the Supreme Court in the landmark Navtej Singh Johar case in 2018, the question of whether two homosexual individuals can marry each other or not is being considered by the Delhi High Court in the case of Abhijeet Iyer Mitra versus Union of India.

It has been argued by the Centre that marriage is only permissible between a biological man and a biological woman. It further averred that the institution of marriage comes under larger State interest and not merely whether two individuals can rightfully exercise their choice or not. Adding to the same, it also argued that no codified law or uncodified practice allows for same sex marriage.

In light of these factors, it is important to take into consideration that while marriage may be a subject that involves State interest, the directly concerned parties are the individuals seeking to get married. They must not be deprived of their choice, as the same would directly go against the fundamental right to life and personal liberty under Article 21 of the Constitution.

This “freedom of choice” in marriage was recognised by the Supreme Court in the case of Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014.

For the purposes of this, it is also important to actually understand sexual orientation of individuals and focus on the wider topic of sexuality, rather than viewing it from a binary approach.

It should be emphasised that the terms ‘gender’ and ‘sex’ are not interchangeable. ‘Sex’ refers to one’s biological sex, which can be male or female, whereas ‘gender’ relates to psychological sex, which is one’s own sense of self, emotions, psychology, and what they personally identify as. The Supreme Court’s landmark NALSA judgement in 2014 clarified that sex also includes gender.

The Madras High Court delved into section 5 of the Hindu Marriage Act in Arun Kumar case. Brief facts of the case entail that the first petitioner, a cis-gendered male, entered into a marriage with the second petitioner, a transgender woman. This marriage followed all the rituals and traditions of a Hindu Marriage, and the couple decided to register their marriage in accordance with the Hindu Marriage Act.

The joint registrar, who was the third respondent in the case, did not register this marriage, stating that the second petitioner, being a transgender woman, could not be considered a ‘bride’ for the purposes of Section 5 of the Hindu Marriage Act.

This argument essentially means that the term ‘bride’, which had to be a ‘woman’ as per the Hindu Marriage Act, could only be a cis-gendered woman. This follows a restrictive approach, and the matter was taken to the high court, where the condition was rejected. The court upheld the right to self-determination of gender as laid down in the NALSA judgement.

The court went on to clarify that the term ‘bride’ as mentioned in section 5 of the Act could not be interpreted in a manner so as the meaning of the provision is rendered “static or immutable”. Reliance was also placed on Justice G.P. Singh’s book ‘Principles of Statutory Interpretation’, which states that the court is free to apply the current meaning of a statute to present day conditions. “A statute must be interpreted in light of the legal system as exists today,” the court concluded.

In light of this, the court held that the interpretation of section 5 must be such that trans-genders are also included within the ambit of the provision, and can legally marry in India.

Now the question that arises here is whether same-sex people can marry under the Hindu Marriage Act or not, considering that the mandate of section 5 requires a bridegroom and a bride. If two individuals who are biologically of the same sex and identify as the same gender, will their marriage be valid under the statute?

Before interpreting the provisions of the Hindu Marriage Act, it is important to understand whether same sex marriages can be considered to flow from the tenets of Hinduism or not.

The Madras High Court in the Arun Kumar case discussed certain mythological tales which clearly indicate that same sex unions are not against the tenets of Hinduism.

While there are multiple instances, one of the most relevant that the court made note of was the birth of Lord Ayyappa, which is believed to have been formed out of a union of Lord Shiva and Lord Vishnu (in the form of Mohini).

Same-sex or sexual interaction apart from strict heterosexual aspects is also valid under the law. The penal provision that rendered such engagements illegal has been read down by the Supreme Court in Navtej Singh Johar case.

In addition to this, marrying a person of one’s choice is considered as a fundamental right under Article 21 of the Constitution.

Can the Hindu Marriage Act can be interpreted so as to include same-sex marriages within its scope? In order to answer this, certain rules of interpretation will be applied to the statute.

This is the first and most direct rule of interpretation. It is necessary to present or interpret the terms used in a statute in their natural or usual sense in accordance with this rule. If, following the interpretation, the meaning is absolutely apparent and unambiguous, then the effect of a statutory provision should be supplied regardless of the consequences that may result.

Basically, the fundamental rule is that whatever the objective of the legislature was when it passed a law, it was represented via words, which must be read in accordance with the principles of grammar.

In statutory interpretation, it is the most reliable rule since it allows us to determine what legislators intended from the words and the language they chose to express themselves.

If the literal rule of interpretation is applied to the word ‘bride’ in section 5, then same-sex marriages cannot be allowed. This is because the provision in its raw terms requires that a bridegroom and a bride be involved in a marriage.

As the word ‘bride’ refers to women in its literal English definition, if two individuals who identify as men wish to marry each other, then the same would fall outside this provision, as such marriage would lack a bride.

The same hypothesis would be applicable to a case where two females who also identify as women wish to marry each other because then, the ‘bridegroom’ would not be present.

Therefore, section 5 cannot be interpreted in a manner so as to allow same sex marriages, as per the literal rule of interpretation.

While the literal rule of interpretation does not provide an affirmative answer to the question of validity of same-sex marriages under the Act, it must be noted that the literal rule is not the only valid rule of interpretation. If it were to be so, then various statutory provisions would have a meaning different from what they were actually intended as.

For example, Section 397 of the IPC, which prescribes the punishment for robbery, states that the culprit must have used a deadly weapon. If the raw terms of the provision is taken into consideration and only the literal rule is applied, then merely carrying a gun and committing theft would not amount to robbery as the gun was never used per se.

However, courts have time and again clarified that the word ‘use’ as provided in section 397 does not mean literal usage of the weapon (as recently held by the Supreme Court in the case of Ram Ratan versus State of Madhya Pradesh). Even if a weapon has been carried by the culprit, the same instigates fear in the mind of the victim, and this would amount to robbery and attract the applicability of section 397.

Consider that section 5 of the Hindu Marriage Act reads as “the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage.”

It must be firstly taken into consideration that the provision is restrictive in terms of age, and its main essence is age and not gender. While it was drafted with the assumption that the two individuals marrying each other would not be of the same gender, no other provision of the Act or any other statute having an overriding effect on the Act lays down a restriction where only individuals of different genders can marry each other.

There are two interpretations available on this. One leads to the result that two individuals can only marry if they are of different sexes. The other interpretation would result in same-sex marriage being considered valid.

As per the golden rule of interpretation, that the interpretation which is narrower in nature and may be a means of injustice, should not be given preference over an interpretation which is wider in nature and also remedies some absurdity or injustice.

In addition to this, the golden rule of interpretation can deviate from the exact literal and grammatical meaning of the statute as well, as long as the conditions mentioned above are fulfilled.

For the purposes of this, it must also be taken into account that the courts must interpret a provision that has a valid meaning in today’s society, as Justice Singh has written in his book on statutory interpretation, referred to earlier.

Considering all these factors, same-sex marriage should be considered valid under section 5.

(IPA Service)

Views are personal

Courtesy: The Leaflet

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