Same-sex couples of all faiths must get right to marry, not just under Hindu Marriage Act

The time to allow same-sex marriages or civil unions has come. But problematic areas should be ironed out, and the right should be given to Indians of all faiths

Abhijit Majumder September 19, 2020 10:02:03 IST
Same-sex couples of all faiths must get right to marry, not just under Hindu Marriage Act

Representational image. Wikimedia Commons

The issue of same-sex marriage is finally at our doorstep. LGBTQIA activists have filed a petition in the Delhi High Court, holding by the chin a society which habitually looked away from the subject and gently turning it towards the legal legitimacy of sexual choice. If men and women can marry, why should same-sex partners be denied civil union?

It is a fair demand. Intersex activist from Tamil Nadu Gopi Shankar M, journalist Abhijit Iyer-Mitra, transgender activist G Oorvasi, and founder-member of Sakhi, the lesbian archives, Giti Thadani filed a petition at the Delhi high court, appealing that such marriages be conducted under the Hindu Marriage Act of 1955 (HMA). They argued that there is nothing in the Act that prohibits same-sex marriage.

Indeed, the HMA perhaps implies, but nowhere explicitly specifies that marriage has to be between a man and a woman. The word ‘man’ does not even appear in the entire text of the Act, and ‘woman’ makes just one cameo. ‘Husband’ and ‘wife’ are used, but those could be interpreted today in the realm of roleplay.

Appearing for the Union government, solicitor general Tushar Mehta reportedly told the court that “our legal system, society and values do not recognise marriage between same-sex couples”.

Some may argue that Hindu marriage is predicated on ‘putrarthe kriyate bharya’ or procreation, but such ancient references are neither legally nor morally binding on any Hindu, especially in a civilisation which prides itself in being flexible, ever-changing and free-flowing like its great rivers.

A knowledgeable man like Mehta surely also knows that Hindu culture is replete with same-sex imagery. These are celebrated, far from the shadow of the Abrahamic punishing-rod of sin and damnation.

To participate in Krishna’s Vrindavan raas leela with Radha and the gopis, for instance, Shiva bathed in the Yamuna and took a woman’s shape. Krishna recognised him and hailed him as Gopeshwar. Vrindavan still has a Gopeshwar temple, where Shiva is worshipped in his feminine form. The lingam is dressed up as a gopi, and shringar ceremonies are held. There are many such references across India’s ancient texts, including the Mahabharat and Ramayan.

So, the solicitor general’s culture excuse does not hold. Besides, India society constantly adapts and reforms, and so do our laws.

The question here is why should such marriages happen only under the Hindu Marriage Act? One of the first acts of prime minister Jawaharlal Nehru after Independence was to clean up Hindu personal law through the Hindu Code Bills, ushering modernity in marriage, succession and other laws. However, he left Muslim personal law untouched.

Why should another set of changes be carried out for just Hindus, Sikhs, Buddhists and Jains leaving out other Indians? Why can’t the Special Marriage Act of 1954, which applies to people from all faiths, be amended to allow same-sex marriage?

Better still, we should soon get a progressive Uniform Civil Code under which LGBTQIA civil unions are solemnised. And before we rush into legalising gay marriage, nuanced issues like child adoptions should be wisely, meticulously debated and thrashed out.

It seems plain unjust that same-sex couples should be denied normal rights that married heterosexual partners have —simple things like legally consenting to medical procedures, a joint property or insurance plan, or nomination formalities.

The time to allow same-sex marriages or civil unions has come. But problematic areas should be ironed out, and the right should be given to Indians of all faiths. One nation, one sexual liberation.

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