Same-Sex Marriage in India: Reimagining the Hindu Marriage Act

Introduction

The discourse surrounding same-sex marriage in India has sparked a crucial debate regarding the interpretation of personal laws, particularly the Hindu Marriage Act, 1955. While the Supreme Court's landmark judgment decriminalized consensual same-sex relations, the legal recognition of same-sex marriages remains a contentious issue, primarily due to the Act's traditional, heteronormative framework.

Understanding Same Sex Marriages under the HMA, 1955

The Hindu Marriage Act, 1955, defines a Hindu marriage as a union "solemnized between any two Hindus" (Section 5). However, the Act implicitly assumes a heterosexual union by referring to "bride" and "bridegroom" and by outlining conditions that typically apply to opposite-sex couples. Specifically, Section 5(i) requires that "neither party has a spouse living at the time of the marriage," which, while not explicitly excluding same-sex couples, reflects a traditional understanding of marriage.

The core challenge lies in interpreting the terms "Hindu" and "marriage" in a manner that aligns with constitutional principles of equality and non-discrimination. Advocates for same-sex marriage argue that the Act should be interpreted progressively, recognizing that gender identity is not limited to biological sex and that "marriage" should encompass unions between individuals regardless of their sexual orientation.

The legal validity of same-sex marriages under the Hindu Marriage Act would have profound implications, granting same-sex couples the same rights and protections as heterosexual married couples. The significance of such recognition extends to:

• • Inheritance and Succession: Legal marriage provides clarity and security in matters of inheritance, ensuring that same-sex partners are treated as legal heirs (Section 8 of the Hindu Succession Act, 1956, which refers to "spouse").
• • Adoption and Child Custody: Legal recognition would enable same-sex couples to jointly adopt children and establish parental rights, aligning with the Juvenile Justice (Care and Protection of Children) Act, 2015.
• • Maintenance: A legally recognized marriage grants the right to maintenance under Section 24 of the Hindu Marriage Act, ensuring financial support for a dependent spouse.
• • Social Security and Insurance Benefits: Legal recognition would extend access to social security benefits, insurance coverage, and other spousal benefits.
• • Protection from Domestic Violence: Legal marriage provides access to domestic violence protection laws, safeguarding same-sex partners from abuse.

Conclusion

Legal recognition necessitates either legislative amendments or judicial interpretations that broaden the scope of the Hindu Marriage Act. The judiciary's role is crucial in harmonizing personal laws with fundamental rights. The ongoing legal challenges and public discourse highlight the need for a nuanced understanding of marriage as a social institution that evolves with changing societal norms. The recent judgment of Supriyo Chakroborty v. Union of India, [2023] 16 S.C.R. 1209 sheds light on the same wherein the Supreme Court upheld the idea of freedom and the concept so mentioned under Section 377 of the Indian Penal Code, but expressed its concern over the idea of institutionalizing it under the concept of marriage under the Hindu Marriage Act as the term mentioned under the Act is ‘bride and ‘bridegroom’.