This article was written by Mahak Kharb, a student of University School Of Law & Legal Studies, GGSIPU (Guest Post)
Brief : Marriage is fundamentally seen as a heterosexual union with procreation being the sole motive. This article intends to quash such feudal beliefs on marriage and argues that the meaning of marriage has evolved with the evolving society. It is now recognised as a Union of Two Souls.
Marriage is seen as a sacramental union in the Hindu Tradition. The ancient texts like Rig Veda and Manu Smriti played an instrumental role in enforcing this belief. Manu asserts that the union of Marriage is made by the just, the creator, the wise and by the learned.[i] There is a certain sense of divinity that is attached to this union. The primitive idea behind the institution of marriage is procreation and passing on of the race. Rig Veda at one point even quotes that, “To be mothers, were women created and to be fathers men”.[ii] But even though procreation has always been part of the definition of marriage, certainly, but rarely the only goal or, in some cases, even the principal one.[iii] When looked closely, one would find that the meaning of marriage is different for different people. For a same-sex couple, marriage is the epitome of their love, For a poor man, marriage is hope for a better future of his daughter where her economic needs would be met in her second home, And for few men, marriage is an opportunity of receiving a hefty dowry and a sedan car. In Shakespeare’s plays alone one finds a kaleidoscope of purposes for marriage-for love, for dynastic purpose, for spite, for sex.[iv]
The mandate of procreation being the primary reason behind marriage seems somewhat flawed and outdated as it was correctly pointed out by Judge Richard Posner[v], by questioning why sterile men are allowed to marry if procreating is the only and solitary basis of marriage. The relationship of procreation and marriage is primarily based on pre conceived notions. If Indian jurisprudence has to be taken into account, nowhere has the Supreme Court explicitly stated procreation to be the only purpose of marriage. Infact, the Hon’ble Court on several occasions has held that marriage is a relationship of love, affection, care and concern between the husband and wife.[vi] It was further remarked by the Apex Court that physical union may be a result of marriage for procreation, but what is essentially contemplated is union of two souls.[vii] The perspective of Indian courts on marriage being a union of souls cannot be ignored.
It is argued that of all the social institutions, marriage has been the most flexible.[viii] India, where love before marriage was unfathomable and seen as almost anti social[ix] about a century ago has now become much more accepting of the concept of love marriages. In definition and practice, marriage has evolved and devolved to meet economic and political demands, shifting cultural norms and biological imperatives.[x]
In the historic verdict of Navtej Singh Johar v. Union of India,[xi] the Supreme Court legalised homosexuality by striking down Section 377 to the extent of consensual carnal intercourse between two adults. This decision is a major breakthrough for homosexuals and transgenders, and will lay down the path to legalisation of same-sex marriages and other rights that arise from marriage. Johar Judgement has been widely applauded as it reflects the progressive society that India is becoming slowly and steadily. It captures the sensitivity of the Court and the instrumental role that the Courts are playing in order to bring about a change. It bids adieu to the victorian legislations and the British hangover, finally harbouring in the much awaited liberalisation of minds.
While the step of decriminalising homosexuality is great but it’s certainly not enough. More rights are needed to make the lives of LGBT people fuller and ensure that they live a dignified and quality life. More rights may imply Right to Marry.
A utilitarian argument made after a detailed survey of social science research on the subject is that same-sex and heterosexual relationships do not differ in their essential psychosocial dimensions, that marriage bestows substantial psychological, social, and health benefits and that same-sex couples and their children are likely to benefit in numerous ways from a legal recognition of the relationship as marriage.[xii]Same-sex marriages are no less expressions of emotional support or public commitment than opposite- sexmarriages.[xiii]Many same-sex couples wish to marry simply because they are part of a culture in which marriage has long been represented as the ideal institution of connection and commitment and this belief transcends the bounds of sexual orientation.[xiv] They also believe that the choice of a marital partner is an important personal decision, over which others, particularly the state, should have no control.[xv]Thus the straightforward argument in favour of same-sex marriage is that if two people want to make a commitment of marriage, they should be permitted to do so, and excluding one class of citizens from the benefits and dignity of that commitment demeans them and insults their dignity.[xvi]
French philosopher and thinker, Simone Weil, once said: “Liberty, taking the word in its concrete sense consists in the ability to choose”. The right to marry a person of one’s choice is seen as integral to life and liberty under Article 21 of the Constitution.[xvii] Then why is it that this right is not extended to persons belonging to the same-sex, wanting to marry each other by their choice. It’s a direct violation of their fundamental right.
Further, it has already been explained before as to how procreation being the genesis of marriage is merely a social perception and not the rule. In fact on an occasion, Supreme Court itself remarked that physical union may be a result of marriage for procreation, but what is more important is the union of two souls.[xviii] The celebrated American Judge, Chief Justice Marshall analysed arguments for why, if a stable procreative setting is the goal, same-sex marriage bans are both over and underinclusive. He suggested that many same-sex couples are permitted and even encouraged to adopt or conceive through artificial insemination and subsequently raise children, Marshall argued, while many opposite-sex couples freely marry without any desire or even ability to procreate.[xix] Therefore, attempting to ground the right to marry in procreation thus smells suspiciously post hoc.[xx]
In times when homosexuality has been legalised in India, it is arguably the best time to take the plunge and address the issue of same-sex marriages. It is imperative to address the evolving needs of the evolving society. India has never been as accepting of same-sex relations as it is today. Though it’s true that we still have a long way to go but we need to start from somewhere and fortunately enough, the start of the revolution began with decriminalising homosexuality. Now we need to ensure that the society is sensitised towards homosexuals and the homosexual persons are given all the rights that they deserve to live a whole and meaningful life. To quote CJ Mishra from one of his celebrated judgements[xxi], “It is important for the feudal perceptions to melt into oblivion in order to pave the smooth path for liberty.”
[i] Rajni Devi, Marriage among Hindus with Special reference to Dowry, 20 IOSR-JHSS 1(2015).
[ii] Rig Veda, IX, 85 as translated by Ralph T.H. Griffith.
[iii] Michael Hiltzik, Same-sex marriage: Supreme Court Justices don’t know much about history, L.A. TIMES, (Apr 29 2015), http://www.latimes.com/business/hiltzik/la-fi-mh-samesex-marriage-supreme-court-justices-20150429-column.html.
[v] Posner v. Indiana.
[vi] Chetan Dass v. Kamla Devi, (2001) 4 SCC 250; A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22.
[vii] A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22.
[viii] STEPHANIE COONTZ, MARRIAGE-A HISTORY (2005).
[ix] COONTZ, Supra Note 5.
[x] Michael Hiltzik, Supra Note 3.
[xi] Navtej Singh Johar v. Union of India, (2018)1 SCC 791.
[xii] Gregory M. Herek, Legal Recognition of Same-Sex Relationships in the United States: A Social
Science Perspective, 61(6) AMER. PSYCHO. 607-621 (2006).
[xiii] Jamal Greene, Divorcing Marriage from Procreation, 115 YALE L.J. 1990, 1995 (2005).
[xiv] Mary L. Bonauto, Goodridge in Context, 40 HARV. C.R.-C.L. L. REV. 1 (2005).
[xvi] Martha Nussbaum, A Right to Marry? Same-sex Marriage and Constitutional Law, DISSENT MAGAZINE (2009).
[xvii] Shafin Jahan v. Asokan K.M. & Ors.
[xviii] A. Jayachandra Vs. Aneel Kaur, (2005) 2 SCC 22.
[xix] Goodridge, 798 N.E.2d at 961-62.
[xx] Jamal Greene, Supra Note 13.
[xxi] Shakti Vahini v. Union of India, W.P. (Criminal) No. 231 of 2010.