Overview: Same-Sex Marriage qua Hindu Personal Laws

Abstract

The idea of same-sex marriage in India has generated a lot of discussion. This article discussed the legal developments surrounding same-sex marriage, the concept of same-sex marriage, Marriage under Hindu personal law, the conflict between same-sex marriage and Hindu personal law and approaches to its recognition. In India, same-sex marriage is a complicated topic characterised by persistent difficulties. While there has been some progress in the law with the partial decriminalisation of homosexuality, same-sex marriage is still not recognized under personal laws.

Keywords- LGBTQ+, Legal developments, Homosexuality, Hindu personal law, Same-Sex marriage.

When it all began: Evolution of the Concept of Same-Sex Marriage

The recognition and acceptance of same-sex marriage is gaining momentum worldwide, signifying a progressive and transformative change. Despite India's significant progress in recognizing the rights and dignity of LGBTQ+ individuals, the legalization of same-sex marriage remains a highly controversial and discussed topic within the country.[1] The LGBTQ+ community is a diverse group of individuals who have sexual orientations or gender identities that are not considered heteronormative. The acronym represents Lesbian, Gay, Bisexual, Transgender, Queer and the symbol "+" includes other identities like Pansexual, Asexual, Gender queer and more. The Hon'ble Supreme Court in the National Legal Services Authority v. Union of India & Ors[2] made the first attempt to legally recognise their gender and the fundamental rights that all people have regardless of their gender. Further in the case of Navtej Singh Johar v. Union of India[3], the Supreme Court of India decriminalized homosexuality in the country. A few years ago Kerala hosted India's first same-sex wedding.[4] Also, in the latest judgment of 2023, the bench was of the view that “the transgender persons in heterosexual relationships can marry” but also rejected the legal status of same-sex marriage with a majority of 3:2.[5] But most states still don't allow or recognize same-sex unions.[6]

Hindu Personal Laws

In India, marriage laws are primarily governed by personal laws based on an individual's religion. Hindus follow Hindu personal laws, which are separate from the laws governing other religious communities such as Muslims, Christians, and others. Under Hindu personal laws, marriage is considered sacred and is governed under the Hindu Marriage Act of 1955. The act applies to any other person who is a Hindu, Jain, Buddhist or Sikh within the territory of India. Hindu personal law considers marriage as the union of heterosexuals as section 5 of The Hindu Marriage Act,[7] which specifically states that at the time of marriage, the bridegroom must be twenty-one years of age and that the bride be eighteen years of age. While interpreting in terms of gender the word bride means “a girl” and groom means “a man”. Personal laws play a very significant role and have been of utmost importance since ages. During the time of the queen's rule when the British were trying to draft, amend and modify the laws, they did not interfere with the personal laws as the society never accepted the British culture dealing with marriage and other personal laws in India.

Same-sex marriage qua Hindu personal laws

The main issue between same-sex marriage qua Hindu personal laws is that if marriage rights to same-sex couples are provided, it will refrain from determining consequential rights including adoption, succession and inheritance as these are inseparably linked to religion based on Hindu personal laws.

Adoption

There are currently no provisions for same-sex couples for adoption. The Hindu Adoption and Maintenance Act, which primarily governs Hindu adoption laws in India, does not consider same-sex couples as potential adoptive parents.[8] Same-sex couples in India face significant obstacles to adoption because same-sex marriage is not recognised by the law. Same-sex couples do not have the same rights and privileges as heterosexual couples without legal recognition, including the ability to adopt jointly in most of the nation.

Succession

Hindus' rights to inherit and succeed are governed by the Hindu Succession Act, which is a part of Hindu personal law. The Act establishes guidelines for how assets will be distributed to heirs in the event of a person's passing. However, because same-sex marriages are not permitted by Hindu personal laws, this Act does not include provisions for same-sex partners. Section 3 of the act describes the terms Agnate, Cognate, and Heirs.[9] Succession through these terms is possible in a heterosexual relationship and not in a same-sex relationship.

According to the guidelines outlined in the Hindu Succession Act, close family members, such as spouses, children, and other relatives, frequently inherit property in intestate succession cases (when a person passes away without leaving a will). This legal framework does not apply to partners who are of the same sex. Same-sex partners do not have the same legal rights to inherit property or assets from their partners as married heterosexual couples do under the current legal system because same-sex marriage is not recognised in India.

Inheritance

Hindu personal law does not contain any specific laws governing the inheritance rights of same-sex couples, and same-sex marriage is not legally recognised in India. Same-sex couples encounter significant obstacles when it comes to inheritance under current legal frameworks in the absence of legal recognition. Hindus' inheritance rights are governed by the Hindu Succession Act of 1956, which is a part of Hindu personal law. The Act outlines the legal heirs and their stakes in a Hindu decedent's estate. However, because same-sex marriages are not permitted by Hindu personal laws, this law does not include provisions for same-sex partners.

Same-sex partners are not included in the list of legal heirs, and they do not have automatic inheritance rights as compared to married heterosexual couples that do have rights under the existing Hindu personal laws.

Conclusion

In summary, same-sex marriage in India is a complicated and developing issue that has made significant strides in recent years but still faces formidable obstacles. The legal recognition of same-sex marriage on a nationwide level in India has not yet come to fruition. Nevertheless, it is imperative to acknowledge that notable legal advancements have indeed laid the groundwork for forthcoming discussions and prospective amendments. The view of society regarding the acceptance of same-sex marriage is still very puzzling. In the current scenario, the rights granted are granted to heterosexual couples. The rights afforded to a married couple under Hindu personal law predominantly revolve around inheritance and procreation. However, the matter of conceiving a child for same-sex couples remains a subject of contention, rendering the prospect of same-sex marriage becoming a tangible reality in India a contentious topic.

The author affirms that this article is an entirely original work, never before submitted for publication at any journal, blog or other publication avenue. Any unintentional resemblance to previously published material is purely coincidental. This article is intended solely for academic discussion. The author takes personal responsibility for any potential infringement of intellectual property rights belonging to any individuals, organizations, governments, or institutions.

[1] https://www.voanews.com/a/india-s-supreme-court-holds-landmark-hearings-on-legalizing-same-sex-marriages/7066591.html

[2] NALSA vs. Union of India (2014) 5 SCC 438

[3]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1

[4] https://economictimes.indiatimes.com/news/india/same-sex-marriage-verdict-what-lgbtq-community-got-and-what-it-didnt/articleshow/104491992.cms?from=mdr

[5] Supriyo@ Supriya Chakraborty & Abhay Dang v. Union of India

[6] https://timesofindia.indiatimes.com/readersblog/dopamineffable/same-sex-marriages-in-india-a-complete-overview-53507/

[7] THE HINDU MARRIAGE ACT, 1955

[8] THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956

[9] THE HINDU SUCCESSION ACT, 1956

[10] https://www.jstor.org/stable/26826609

Vibhanshu Srivastava is a penultimate-year student at Bharati Vidyapeeth, New Law College, Pune, with a deep interest in criminal laws.