The Delhi High Court is currently hearing a bunch of petitions to allow same sex marriages in the Indian Legal System. Through the petitions, different petitioners have approached the Delhi High Court to legitimise same sex marriages and allow the registration of the same under different acts. The main petition seeks permission to register same sex marriages under the Hindu Marriage Act, 1955. Other connected matters are seeking registration of marriages under the Special Marriage Act, 1954 and Foreign Marriage Act, 1969. Supreme Court of India on 6th September, 2018 in the matter of Navtej Singh Johar v. Union of India partially dissolved Section 377 of Indian Penal Code by declaring parts unconstitutional which say, “in so far as it criminalises consensual sexual conduct between adults of the same sex”. Through this judgement, Supreme Court decriminalised the homosexuality in India wherever it is consensual. People from the community since then have been demanding marriage rights for same sex couples.
India is a secular nation on paper; however the reality is a bit different. It allows personal laws for marriage and other matrimonial acts. For Hindus, the law was made in 1955 whereby making a codified law of marriages for Hindus in any form including Virashaiva, Lingayat, followers of the Brahmo, Prarthana and Arya Samaj, etc. Additionally, it covers the Buddhists, Jains and Sikhs. Marriage and other matrimonial acts of Christians are governed by The Indian Christian Marriage Act, 1872 where as Parsi marriages are covered under the Parsi Marriage and Divorce Act, 1936. Muslims in India are governed by Islamic customs and schools and have not been codified due to vote bank politics. The tribal population of India is governed by the Santhal customs and rituals as per Section 2(2) of the Hindu Marriage Act, 1955. The Sikh population in various states of India is also being governed under the Anand Marriage Act, 2012 where they can register their marriage under this act rather than Hindu Marriage Act, 1955.
The Hindu religion is the oldest living religion with a documented history of over 10,000 years. The Hindu Marriage Act, 1955 is based on Hindu rituals and customs and based on the Hindu religious texts. As per Hinduism and its religious books, the roles of men and women are defined in a marriage. Thus, it is also called a sacrament and directly affiliated to the religious ceremonies. Parsi is one of the oldest religions being over 2500 year old, whereas Christianity is over 2000 years old. Marriages in these two are also sacramental because of their religious involvement. Islam is over 1400 year old and marriages of Muslims are more in the form of Civil Contract which has very little to do with their religion. The tribal population in India follows its Santhal customs and thus their marriage is also sacramental in nature. For inter-faith marriages, there is a secular act called the Special Marriage Act, 1954 which is civil in nature and doesn’t include religious ceremonies. On the other hand, the Foreign Marriage Act, 1969 was introduced to allow Indians marrying foreigners, which is also a civil contract in nature. The Indian Constitution recommends a Common Civil Code, however only the state of Goa has it while others are having the acts mentioned above.
Through the petitions, the petitioners want to have same sex marriages registered under the Hindu Marriage Act, 1955; Special Marriage Act, 1954 and Foreign Marriage Act, 1969. Marriages under Special Marriage Act, 1969 & Foreign Marriage Act, 1969 may be allowed because they’re civil contracts and after the judgement of Navtej Singh Johar v. Union of India passed by Supreme Court of India, homosexuals should be allowed to marry. However, seeking the same relief under Hindu Marriage Act, 1955 and not seeking the same under different personal laws doesn’t make any sense. Firstly, Hinduism is the oldest religion and thus making any change in that should be considered at last. Other religions which are comparatively new must be having the feature first. Secondly, Islamic marriages are civil contracts whereas Hindu Marriages are sacramental in nature. Thus, it is comparatively very easy to bring amendments in Islamic marriages as compared to the Hindu Marriage Act wherein even the roles of men and women have been defined for the purpose of marriage.
While passing verdict in this matter, the Delhi High Court must consider these facts. As per the definition of secularism, a state must not differentiate between religions. Any changes made in the matter of religious matters must be made equally. Additionally, religions which are comparatively younger must be amended first and then followed by the older. Alternatively, the court may allow same sex marriages in the Civil Marriage Acts and not touch acts which are based on religion. Needless to say, Hindus and Hinduism must not become an experimental ground of amendments.
Author: Adv. Shashank Shekhar Jha
Legal Editor, GoaChronicle.com