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Should India's religious marriage laws include same-sex/queer couples?

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Should India have only civil marriage equality, or same-sex religious marriages too?

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BrhannadaArmour thumbnail
Posted: 1 years ago

India has laws for Hindus, Muslims, Christians, and Parsis to marry according to religious custom, plus civil marriage by registration is available to everyone.


The Supreme Court seems inclined to consider only modification of the Special Marriage Act, in which gender-neutral language would allow same-sex/queer couples to marry by registration and access the legal rights and responsibilities inherent to marriage.


Would this be enough?


Or, would sexual/gender minorities still be denied significant societal benefits by exclusion from legal recognition of their religious marriage ceremonies?


In theory, anyone who has a religious marriage ceremony is allowed to register the marriage. Are there situations in which the option of a religious ceremony would provide relief to couples seeking to marry in their communities, which would not be available through only a civil marriage?


I don't live in India, nor am I a lawyer, so please enlighten me.

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Satrangi_Curls thumbnail
Posted: 1 years ago

Currently, religious marriages are allowed, but they cannot be registered as there is no law for the same. 


So, I could get married to a woman in a temple or church but that marriage would not be considered "legal/registered". 


Other aspect is, marriages conducted outside India, of Indian nationals are still not recognised as legal within India. 

BrhannadaArmour thumbnail
Posted: 1 years ago

What does "allowed" mean? That a same-sex religious marriage ceremony performed in India is neither a crime nor a legally binding contract?


Same-sex marriages solemnized outside India could be legal/illegal where they occur. India should make it clear that same-sex marriages legally registered in other countries will be recognized as equivalent to those registered in India. A question for debate here is: if a same-sex religious marriage ceremony is performed outside India, should India recognize the marriage as valid?


What is the status in India of opposite-sex religious marriages solemnized outside India?

Edited by BrhannadaArmour - 1 years ago
Satrangi_Curls thumbnail
Posted: 1 years ago

Indian legal system provides that the marriage of people will be governed by their religion-based Acts and provisions.

For example, if two Hindu people will marry each other than the marriage will be governed by Hindu Marriage Act even when they marry each other abroad or overseas, provided that the couple had Indian domicile at the time of marriage and as neither of the Acts deals with same sex marriage, the marriage will not be recognized by the Indian legal system.

Further, the Foreign marriage act has a provision under which "Central Government may declare that marriages celebrated under the law in force in such foreign country shall be recognized by courts in India as valid."... but as the above-mentioned act does not deal with same sex marriages so, in any case it will not be recognized.



In the case of Noor Jahan Begum v. Eugene Tiscenko, which is the only foreign heterosexual case, dealt by Indian courts, in which the plaintiff solemnized her marriage in Poland, and lived in Rome, but later she moved to India, and started living in Calcutta. The validity of the marriage was in question, and in the same regard the court held that the formal aspects of marriage are governed by the principle of lex loci which means the place where marriage was performed, and the rights involved such as dissolution in marriage are governed by the law of domicile, which means the law of the country in which for the time being they were domiciled;

And hence, in any scenario, the same sex marriages (either solemnized within the boundaries of India or outside the boundaries of India) are not permitted and recognized in India and the state is not bound to provide them with any marital status.

BrhannadaArmour thumbnail
Posted: 12 months ago

When same-sex couples who want to marry have no alternative to the Special Marriage Act, will it force some couples to choose between marriage and family/inheritance rights?


If I am reading the Special Marriage Act sections 19, 20, 21, and 21A correctly, it discriminates on the basis of religion, putting Hindu, Buddhist, Sikh, and Jaina individuals in one category (I'll abbreviate it as HBSJ) and Muslim, Christian, Jewish, and Parsi individuals, individuals of other religions, and individuals with no religion into the other category (non-HBSJ).


Non-HBSJ individuals who register civil marriages have to follow the Indian Succession Act, without benefit of its exceptions for Muslims or Parsis. Opposite-sex couples have the option to marry as Muslims, Parsis etc. and follow personal laws for spousal property rights and inheritance, but same-sex couples would only have civil marriages.


If an HBSJ person belonging to a Hindu Undivided Family (one or more males with the same patrilineal ancestor, together with their wives/widows and unmarried daughters) registers a civil marriage with a non-HBSJ person, the HBSJ person is automatically severed from that family. The HBSJ person loses the right to use ancestral property of the family. Even if paying taxes as a family unit would save money for the family to improve its quality of life, the HBSJ person is legally obligated to pay taxes as an individual. The Caste Disabilities Removal Act applies to the HBSJ person after marriage, meaning that any dispute with another person of the same religion cannot be decided by personal law. The Indian Succession Act without its exceptions for HBSJ applies to the HBSJ person, meaning that the HBSJ and non-HBSJ spouses have no rights to each other's property.


None of the above disadvantages arise for an HBSJ person registering a civil marriage to an HBSJ person. The patrilineal definition of a Hindu Undivided Family continues to apply to its HBSJ member and civil married spouse.


Interfaith opposite-sex couples get to choose. Instead of a civil marriage, the non-HBSJ partner can convert to HBSJ and marry in a Hindu ceremony. The Hindu Marriage Act and other personal laws governing disputes, spousal property rights, and inheritance would apply to them. Either the converted female joins the male's Hindu Undivided Family or the converted male starts a new Hindu Undivided Family.


Section 21A of the Special Marriage Act, which exempts both-HBSJ couples from the disadvantages of civil marriage, currently refers to "any person ... with a person." Thus, exemptions are not restricted to opposite-sex couples. Would the Special Marriage Act be amended to remove gender-neutral language in this section? If not ...


Would a same-sex or non-binary couple with both spouses HBSJ (or converted to HBSJ) be allowed to share Hindu Undivided Family status and invoke personal laws governing disputes, spousal property rights, and inheritance?


Alternative 1. Would a son remain in the Hindu Undivided Family while his non-female partner (non-wife/non-widow) is excluded?

Alternative 2. Would a daughter married to a non-male leave the Hindu Undivided Family or be allowed to remain (with or without her spouse)?

Alternative 3. Would a female marrying a non-binary child of a Hindu Undivided Family join that family?


If the family of an HBSJ person who has a same-sex or non-binary marriage with a non-HBSJ person wants the couple to be part of their Hindu Undivided Family, they can't just claim them. Maybe they can legally adopt their own blood relative after the automatic severance? Does anyone know how it might work?


Overall, my understanding as a non-lawyer and non-resident of India is that same-sex couples will remain disadvantaged until personal laws are updated to make them gender-neutral.

Edited by BrhannadaArmour - 12 months ago
Satrangi_Curls thumbnail
Posted: 12 months ago

That is exactly the point being raised by the advocates rn. If you read yesterday's hearing, the advocate said they need the court to intervene in all the laws and update them to bring the community it par with the rights Heterosexual couples have. While the justice was saying they would have to decide on case to case basis, we can't promise to give you everything but doesn't mean we won't give you anything at all. 

Updating laws is the first step.. then comes social acceptance of the said laws. 

aparnauma thumbnail
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Posted: 11 months ago

Same sex marriages are illegal in India currently.

Christian and Muslim religions in India are not performing same sex marriages. ie their marriages are not performed by the priest so they are not recognised in these two religions.

Don't know if Vedic rites allow same sex marriage.

Satrangi_Curls thumbnail
Posted: 9 months ago
This content was originally posted by: aparnauma

Same sex marriages are illegal in India currently.

Christian and Muslim religions in India are not performing same sex marriages. ie their marriages are not performed by the priest so they are not recognised in these two religions.

Don't know if Vedic rites allow same sex marriage.

It is not illegal. Not recognised and illegal are two different things. 


People can get married in temples, in their own houses with the help of priest, some Christians as well. It doesn't hold the save legal validity, as in they can't get the marriage registered in court as there's no law for it. 

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BrhannadaArmour thumbnail
Posted: 6 months ago

"They don't want it" is not a valid argument against equal protection under the law. As a parallel, equality of male/female has to be recognized despite any religious tenet that discriminates on the basis of sex.


Individuals who require same-sex or non-binary marriage for fulfilment are born in every religious community. Sexual orientation or gender identity doesn't automatically make someone averse to religion or politically progressive. There are plenty of Christian, Muslim, and Hindu families who celebrate same-sex weddings with the same religious rituals as opposite-sex weddings.


The law must follow the principles of justice to accord the same rights to everyone without discrimination on the basis of sex. If religious personal laws allow a woman to marry a man by a Hindu/Muslim/Christian/Parsi ceremony, they must allow a man or a non-binary person to marry a man by the same religious ceremony.