Can Any Two Persons Be Married Under Section 5 Of The Hindu Marriage Act?
Q. How do you interpret the term "marriage' under the HMA of 1955 to find out
if the act intended the union between a man and a woman or the union between two
people? When it uses the term marriage," substantiate with the help of internal
and external aids of interpretation.
Section 5 of the Hindu Marriage Act of 1955 deals with the meaning of the word
or term marriage. It is stated that marriage may be solemnised between any two
Hindus. With certain conditions attached. It Is also believed that marriages are
a supernatural and divine act.
A Hindu is a person who follows all the Vedic tradition and practises the forms
of Hinduism, i.e., by birth or from the time they have converted into a Hindu
from any other religion.
The basic and major aspects of the Hindu marriage are to fulfil certain aspects,
that is, to fulfil the aspects of Dharma and perform religious and traditional
rituals. Along with these, another major aspect of marriage is kama, which is to
fulfil and attain all the aspects of life: love, care, and sexual aspects of a
human. Marriage is a process where the husband and wife get united to extend
their family by giving birth to children.
In the Vedic tradition, it has never expressly banned same-sex marriage, but
they have never spoken about it in detail either in Kama shastra or in any other
Vedas. We can see that in ancient India, a lot prominence was given to same-sex
marriages, with the help of A large number of erotic artworks depicting
homosexuality can be found on numerous temples throughout India, including
Khajuraho temple sculptures built in the 700s and the Sun temple in Konark built
in the 1200s.
We have also seen from the ancient mythology that the lord Shiva and Mata
Parvathi Devi get united and form the Ardhanadishvar to destroy the demon, and
this is also considered the god for the transgenders. We can clearly see and
analyse from the Vedic period that the ancient Indians and rishis had a clear
intention to give these people (LGBTQ) their rights as they are also derived
from the God.
But after Indian independence, the Indian education system was completely based
on western facts and ideologies. where Indian origin lost its dominance, leading
to Vedic illiteracy among the majority of Indians. At this point in time, the
majority of the Indians were literate from the point of view of western cultural
education, and at the time of legislative enactments, the legislatures were also
influenced by the western aspect of education based on major supernatural
beliefs and social stigmas that prevailed during that period of time.
The Hindu Marriage Act was enacted in 1955, when the legislatures completely
ignored including the aspect of same-sex marriage or any other forms of LGBTQ
marriage. The Penal law, which was prevalent at the time of 1955, was also
against same-sex marriages. We can also see in Section 377 of the Indian Penal
Code, persons who were indulged in same-sex marriages were punished with the
death penalty was in prevaling during the year 1955, showing the clear intention
of the legislature that they didnt intend the same sex marriage so they intend
only to regulate the marriage aspects between the man and wome
Thus, we can conclude that the legislatures at the time of enacting the
legislation had no clear access to external aid. The legislatures did not refer
to any of the ancient texts or any of the other Vedic texts. They had their sole
basis in the societal beliefs and societal norms that prevailed at that time.
Also to consider is the fact that there were very few, nearly zero, cases of
same-sex marriage or the culture of LGBTQ marriage during the year 1955.
So the legislation The Hindu marriage act intends, under section 5 of the Act,
to govern the union between any two Hindus It is clear that the marriage is
between a man and a woman. As time passes, society and its culture are also
changing, and people's thinking is very wide and unique in this era. That's the
reason we can see an increase in LGBTQ community members.
The concept of same-sex marriage came into existence in the year 2000 and later.
As of now, the union between two people in the Hindu Marriage Act of 1955 is
intended to be between a man and a woman, so we cannot interpret the union of
two Hindus to be between people of the same sex.
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