Queering the Hindu Marriage Act?
Is the Hindu Marriage Act, 1955 (HMA) amenable to a queer interpretation, that allows us to bring within its scope, marriage between two Hindus of the same sex? In the last issue of Maya, Sahil Bansal has argued that such a thing is possible, by showing how Hindu religious and cultural traditions have always accommodated romantic love and marriage between persons, irrespective of their sex. Sahil’s argument, in a nutshell, is that if the “Hindu way of life” can be shown to allow such marriages, then the same must find recognition in judicial interpretation of the HMA.
The argument reveals a misconception about the Act. The word “Hindu” in the title of the HMA does not imply that it codifies Hindu religious beliefs and practices or even Hindu law. The word Hindu signifies that the Act is the personal law applicable to those who identify themselves as Hindus or those who are identified as such by the state (a Lingayat, Brahmo, Arya Samajist, Buddhist, Jain, Sikh and anyone who is not a Muslim, Christian, Parsi or Jew). There is nothing Hindu about the content of the Act. Barring the lone reference to the ritual of saptpadi in section 7, the other features of the Act – the conditions of marriage, the nature and structure of the divorce provisions, the restrictions on divorce, the matrimonial remedies – are all borrowed from early 20th century English matrimonial law. In other words, the HMA has got nothing to do with the “Hindu way of life”, whatever that phrase means.
Sahil however is not alone in believing that the HMA can be interpreted in favor of the queers. Literary scholar, Ruth Vanita, has made a similar argument many times, based on two flawed assumptions. One, that the Act does not specify the sex of the parties to a Hindu marriage and that the words used by the Act can be interpreted independent of their assumed biological references. And two, that since the HMA recognizes local or community customs of marriage, a marriage between two Hindus of the same sex may be legally recognized by showing that many such marriages have taken place in a particular region, over a period of time, with acceptance from friends, family and community members. Let us examine both these propositions by turns.
Indeed, the HMA does not use terms like male/ female or man/ woman to refer to the parties to a marriage. Section 5 opens with the words – “A marriage may be solemnized between any two Hindus…”. In two places – sections 5(iii) and 7(2) – the Act uses the terms “bride” and “bridegroom”, and at others, it uses neutral terms like “party” or “person”. Ruth argues that the terms “bride” and “bridegroom” need not be given their commonly accepted meaning, but must be understood as signifying two different gender-roles that the parties choose for themselves in their relationship and also in their wedding. In support, she cites examples of several weddings of lesbian couples, where one woman performed the bridegroom through dress and conduct, and the other, the bride.
On the face of it, the argument has a limitation in that it works only for those couples where the parties perform two different genders, but not where both want to be brides, or both want to be grooms. But more importantly, it runs into difficulty when we consider the principle of statutory interpretation, that we must read a statute as a whole to determine the meaning of the individual clauses. The HMA may not use sex-specific terms for the parties to a marriage, but the terms that it uses to denote the wider kin network of which they are part, are all kinship terminology that are sex-specific. Thus, in laying down the prohibited relationships, section 3(g) uses the following terms: father/mother; brother/sister; grandmother/grandfather; uncle/aunt; niece/nephew. For Ruth’s argument to hold, one must show that, these terms signify kinship roles independent of sex. Further, one must also answer the questions as to how does one perform the uncle and how is it distinct from performing the aunt?
But then one is saved the trouble by a close reading of section 3(g) itself. The section states that “…two persons are said to be within the degrees of prohibited relationship … (iii) if one was the wife of the brother … of the other”. Here the persons filling the terms “wife” and “brother” must be female and male respectively and not otherwise, for that would change the meaning of what the Act intends. Note that there is no clause stating that a relationship is prohibited if one was the husband of the sister of the other. What the Act intends is to prohibit a Hindu female from marrying her husband’s brother, i.e. her brother-in-law, since that is hit by the incest taboo. But there is no prohibition on a Hindu male marrying his wife’s sister, i.e. his sister-in-law. In other words, what the Act allows or does not allow a person to do, is specific to the sex of the person. Thus, for the HMA to have a coherent, consistent meaning as a whole, the terms “bride” and “bridegroom” can only be given their commonly accepted meanings as the female and male parties to a marriage, respectively.
Be that as it may, the HMA does allow a Hindu female to marry her husband’s brother, through the route of custom. This is what gives validity to fraternal polyandry among the Paharis, where a woman marrying the eldest brother becomes the wife of all the brothers, or karewa or levirate marriages among the Jats, where the widow marries the deceased husband’s brother. Do same-sex Hindu weddings conducted in temples or living-rooms, officiated by Hindu priests, with participation from friends and family members (such as here, here and here) give them the status of custom under the HMA, as Ruth claims? Once again, the argument reveals a lack of engagement with the text of the Act. To be sure, the HMA does not give blanket validity to customs in every aspects of family law. It allows custom or usage to be an exception to the statutory provisions only in four specific cases – one, applicability of Hindu law [section 2(1)(c)]; two, prohibited relationships [section 5(iv) and (v)]; three, ceremonies of marriage [section 7]; and four, divorce [section 29(2)]. None of these, as it should be evident, pertain to the sex of the parties to a Hindu marriage. Thus, even if one is able to put forth a persuasive argument that acceptance of same-sex marriages by priests, religious scholars, family members or community members give them the status of customary marriages, there is nothing in the HMA that can be used to give legal validity to them.
The only way a marriage between two Hindus of the same sex can get state recognition as a valid Hindu marriage, is if the HMA is amended by the legislature to explicitly provide so.
This article was contributed by Saptarshi Mandal who is an Assistant Professor at the Jindal Global Law School.
 Ruth Vanita, ‘Democratising Marriage: Consent, Custom and the Law’ in Arvind Narain and Alok Gupta (eds), Law like Love: Queer Perspectives on Law (Yoda Press 2011) 338-354; Ruth Vanita, Love’s Rite: Same-Sex Marriage in India and the West (Penguin 2005).