Can the Hindu Marriage Act be interpreted to allow same-sex marriages?

Is 'bride' under Section 5 of the Hindu Marriage Act restricted to those who identify as cis-gendered females, or does it include trans women, or males who identify as women, and so on, taking into account all the defined rules of interpretation of statutes?

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THE Madras High Court, in the case of Arun Kumar versus Inspector General of Registration (2019), analysed the legitimacy of cis-trans marriage with regards to the Hindu Marriage Act, 1955 specifically and held that the same would be legally sound. For the purposes of this, the court had taken into consideration Section 5 of the Hindu Marriage Act, and analysed whether the term 'bride' would include a transgendered woman or not.

While the judgement mostly focuses on whether a transgendered person can marry a cis-gender person, it can also help us understand whether same sex marriages would be valid under the Hindu Marriage Act or not.

While homosexuality, which had been considered a sin and hence deemed an offence under Section 377 of the Indian Penal Code [IPC], was decriminalized by the Supreme Court in the landmark Navtej Singh Johar case in 2018, the question of whether two homosexual individuals can marry each other or not is being considered by the Delhi High Court in the case of Abhijeet Iyer Mitra versus Union of India. It has been argued by the Centre that marriage is only permissible between a biological man and a biological woman. It further averred that the institution of marriage comes under larger State interest and not merely whether two individuals can rightfully exercise their choice or not. Adding to the same, it also argued no codified law or uncodified practice allows for same sex marriage.

In light of these factors, it is important to take into consideration that while marriage may be a subject that involves State interest, the directly concerned parties are the individuals seeking to get married. They must not be deprived of their choice, as the same would directly go against the fundamental right to life and personal liberty under Article 21 of the Constitution. This "freedom of choice" in marriage was recognised by the Supreme Court in the case of Re: Indian Woman says gang-raped on orders of Village Court published in Business & Financial News dated 23.01.2014.

For the purposes of this, it is also important to actually understand sexual orientation of individuals and focus on the wider topic of sexuality, rather than viewing it from a binary approach. It should be emphasised that the terms 'gender' and 'sex' are not interchangeable. 'Sex' refers to one's biological sex, which can be male or female, whereas 'gender' relates to psychological sex, which is one's own sense of self, emotions, psychology, and what they personally identify as. The Supreme Court's landmark NALSA judgement in 2014 clarified that sex also includes gender.

Also read: Same-sex marriage in India: why are Indian courts taking so long?

Ambit of Section 5 of Hindu Marriage Act

The Madras High Court delved into section 5of the Hindu Marriage Act in Arunkumar. Brief facts of the case entail that the first petitioner, a cis-gendered male, entered into a marriage with the second petitioner, a transgender woman. This marriage followed all the rituals and traditions of a Hindu Marriage, and the couple decided to register their marriage in accordance with the Hindu Marriage Act. The joint registrar, who was the third respondent in the case, did not register this marriage, stating that the second petitioner, being a transgender woman, could not be considered a 'bride' for the purposes of Section 5 of the Hindu Marriage Act.

This argument essentially means that the term 'bride', which had to be a 'woman' as per the Hindu Marriage Act, could only be a cis-gendered woman. This follows a restrictive approach, and the matter was taken to the high court, where the condition was rejected. The court upheld the right to self-determination of gender as laid down in the NALSA judgement.

The court went on to clarify that the term 'bride' as mentioned in section 5 of the Act could not be interpreted in a manner so as the meaning of the provision is rendered "static or immutable". Reliance was also placed on Justice G.P. Singh's book 'Principles of Statutory Interpretation', which states that the court is free to apply the current meaning of a statute to present day conditions. "A statute must be interpreted in light of the legal system as exists today", the court concluded.

In light of this, the court held that the interpretation of section 5 must be such that trans-genders are also included within the ambit of the provision, and can legally marry in India.

The court referred to Article 16 of the Universal Declaration of Human Rights, which reads that "Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution."

The right to marry a person of one's own choice is also considered to be a fundamental right under Article 21 of the Constitution, reasoned the high court. This was upheld by the Supreme Court in its landmark judgment in Shafin Jahan versus Asokan K.M. (2018).

In the United States of America, it was clearly held by the U.S. Supreme Court in the case of Obergefell versus Hodges (2015) that the fundamental right to marry is guaranteed to same-sex couples also, the high court further noted.

Considering all these factors, the Madras High Court held that the term 'bride' would not be restricted to cis-gendered females. It would include anybody who identifies as a 'woman'.

Now the question that arises here is whether same-sex people can marry under the Hindu Marriage Act or not, considering that the mandate of section 5 requires a bridegroom and a bride. If two individuals who are biologically of the same sex and identify as the same gender, will their marriage be valid under the statute?

Also read: Do same sex couples have the right to marry?

Interpretation of the Hindu Marriage Act – is same sex marriage valid?

Before interpreting the provisions of the Hindu Marriage Act, it is important to understand whether same sex marriages can be considered to flow from the tenets of Hinduism or not. The Madras High Court in the Arunkumar case discussed certain mythological tales which clearly indicate that same sex unions are not against the tenets of Hinduism. While there are multiple instances, one of the most relevant that the court made note of was the birth of Lord Ayappa, which is believed to have been formed out of a union of Lord Shiva and Lord Vishnu (in the form of Mohini).

Same-sex or sexual interaction apart from strict heterosexual aspects is also valid under the law. The penal provision that rendered such engagements illegal has been read down by the Supreme Court in Navtej Singh Johar. In addition to this, marrying a person of one's choice is considered as a fundamental right under Article 21 of the Constitution.

Can the Hindu Marriage Act can be interpreted so as to include same-sex marriages within its scope? In order to answer this, certain rules of interpretation will be applied to the statute.

Also read: A Spectrum of Pride: Recognising Same-Sex Marriage in India

Literal rule

This is the first and most direct rule of interpretation. It is necessary to present or interpret the terms used in a statute in their natural or usual sense in accordance with this rule. If, following the interpretation, the meaning is absolutely apparent and unambiguous, then the effect of a statutory provision should be supplied regardless of the consequences that may result. Basically, the fundamental rule is that whatever the objective of the legislature was when it passed a law, it was represented via words, which must be read in accordance with the principles of grammar.

In statutory interpretation, it is the most reliable rule since it allows us to determine what legislators intended from the words and the language they chose to express themselves.

If the literal rule of interpretation is applied to the word 'bride' in section 5, then same-sex marriages cannot be allowed. This is because the provision in its raw terms requires that a bridegroom and a bride be involved in a marriage. As the word 'bride' refers to women in its literal English definition, if two individuals who identify as men wish to marry each other, then the same would fall outside this provision, as such marriage would lack a bride. The same hypothesis would be applicable to a case where two females who also identify as women wish to marry each other because then, the 'bridegroom' would not be present.

Therefore, section 5 cannot be interpreted in a manner so as to allow same sex marriages, as per the literal rule of interpretation.

While the literal rule of interpretation does not provide an affirmative answer to the question of validity of same-sex marriages under the Act, it must be noted that the literal rule is not the only valid rule of interpretation. If it were to be so, then various statutory provisions would have a meaning different from what they were actually intended as.

For example, Section 397 of the IPC, which prescribes the punishment for robbery, states that the culprit must have used a deadly weapon. If the raw terms of the provision is taken into consideration and only the literal rule is applied, then merely carrying a gun and committing theft would not amount to robbery as the gun was never used per se. However, courts have time and again clarified that the word 'use' as provided in section 397 does not mean literal usage of the weapon (as recently held by the Supreme Court in the case of Ram Ratan versus State of Madhya Pradesh). Even if a weapon has been carried by the culprit, the same instigates fear in the mind of the victim, and this would amount to robbery and attract the applicability of section 397.

Also read: How constitutional courts can recognize same-sex marriage [Part II]

Mischief rule

The mischief rule of interpretation was introduced in the Heydon's case in the year 1584 by the Court of Exchequer in England and Wales. As per this rule, there are four steps that should be followed while interpreting a statute.

1. What was the law before the statute came into being?
2. What was the mischief that led to the enactment of the given statute?
3. What was the remedy that the parliament aimed at introducing by way of the said statute?
4. What is the true reason for the remedy?

Let us apply the mischief rule to section 5 of the Hindu Marriage Act:

1. Law before the statute came into being –

The Hindu Marriage Act replaced the ancient Sastrik law. It is an amalgamation of this law as well as the modern principles of marriage, which include divorce and judicial separation.

2. The mischief which led to the enactment of the Hindu Marriage Act –

The Hindu Marriage Act was enacted to make changes to the Sastrik law as the same did not have provisions for divorce and judicial separation. In addition to this, the statute also safeguards the rights of Hindus in terms of marriage, and provides conditions and procedures for all matters related thereto, such as registration of marriage and valid conditions for marriage.

3. Remedy aimed by the Parliament:

The remedy that the Hindu Marriage Act aimed to provide is the defining the conditions for a valid marriage and prohibiting the evil of child marriage, among other things. The matrimonial remedies provided in the statute include restitution of conjugal rights, judicial separation, divorce, and so on.

4. True reason for the remedy –

The true reason for the remedy is to ensure that the marriage between two individuals is not unfair to either of them, as the conditions mentioned in section 5 talk about age, sound mind, and so on. It also aims at providing relief if the marriage between two individuals does not work out.

Basically, the Hindu Marriage Act came into being to regulate marriage between two individuals and ensure that the same is fair to both of them. Apart from section 5, no other provision of the statute necessarily indicates the restriction of only heterosexual marriages being considered valid. The mischief that the statute aims at relieving is the regulation of marriage, and not that two same-sex individuals could marry each other. The Act is a codifying statute, and not a penal or disabling statute.

Therefore, applying the mischief rule, same sex marriages could be allowed as the same do not fall under the mischief targeted by the Hindu Marriage Act.

Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar

Golden rule

The so-called golden rule supposedly provides a solution to all of the challenges associated with interpretation. The rule states that initially, we will interpret a rule in its literal sense; however, if the interpretation provided by the literal rule results in any kind of ambiguity, injustice, inconvenience, hardship or inequity, the literal meaning shall be discarded, and interpretation shall be done in such a way that the purpose of the legislation is achieved.

The literal rule is based on the principle of interpreting the natural meaning of the words used in the legislation in their original context. The court, however, must only adjust the meaning to the degree that the injustice or absurdity generated by the interpretation leads to a sense of repugnance, absurdity or hardship, and not any further in order to avoid the outcome.

This rule implies that the implications and effects of interpretation need to be given greater weight since they provide indications as to the real meaning of the words used by the legislature and the legislature's intention. It is possible that the interpretation done when using this rule will be completely contrary to the original rule, but this will be justified by the use of the golden rule. The assumption is that the legislature did not intend for certain purposes to be accomplished. As a result, any such interpretation that results in unexpected consequences will be rejected.

Whenever two interpretations are available, the interpretation that lessens the futility or is narrower in character and fails to embrace the legislative aim should be avoided. This was discussed in the case of Nokes versus Doncaster Amalgamated Collieries Ltd. (1940) by the British House of Lords. Instead, we should accept the more audacious version of the construction, which is the aim of the Parliament, to make law solely for the purpose of bringing the outcome into effect through legislation.

The golden rule of interpretation might deviate from the literal wordings of the provision; for example, Section 57 of the Offences against the Person Act in United Kingdom reads as "Whosoever, being married, shall marry any other person during the life of the former husband or wife, whether the second marriage shall have taken place in England or Ireland or elsewhere, shall be guilty of felony, and being convicted thereof shall be liable…to be kept in penal servitude for any term not exceeding seven years…"

If the literal meaning of the provision is taken into consideration, then the provision would not make sense as the person already married and having a living spouse cannot marry again. This matter was discussed in the English case of R versus Allen (1872), wherein the court applied the golden rule of interpretation and held that 'marry' would mean 'to undergo a ceremony of marriage'.

Consider that section 5 of the Hindu Marriage Act reads as "the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage." It must be firstly taken into consideration that the provision is restrictive in terms of age, and its main essence is age and not gender. While it was drafted with the assumption that the two individuals marrying each other would be male and female, no other provision of the Act or any other statute having an overriding effect on the Act lays down a restriction where only individuals of these two different genders can marry each other.

There are two interpretations available on this. One leads to the result that two individuals can only marry if they are of different sexes. The other interpretation would result in same-sex marriage being considered valid.

As per the golden rule of interpretation, that the interpretation which is narrower in nature and may be a means of injustice, should not be given preference over an interpretation which is wider in nature and also remedies some absurdity or injustice. In addition to this, the golden rule of interpretation can deviate from the exact literal and grammatical meaning of the statute as well, as long as the conditions mentioned above are fulfilled.

Also read: Scope of same-sex marriages and gender neutrality of the Special Marriage Act [Part I]

For the purposes of this, it must also be taken into account that the courts must interpret a provision that has a valid meaning in today's society, as Justice Singh has written in his book on statutory interpretation, referred to earlier.

Considering all these factors, same-sex marriage should be considered valid under section 5.