Democracy is often misunderstood as defined simply by majority opinion. In fact, modern parliamentary democracy, including Indian democracy, has evolved with in-built checks and balances to protect minorities (including minorities of opinion) and dissenting individuals from majority tyranny.
In marriage and family matters, minority groups have often suffered majority tyranny. In such situations, minority communities may recognise marriages that the State does not. This happens even in the West but on a much larger scale in India. For example, British law prohibits bigamy and most Muslims in Britain disapprove of it, yet some Muslim bigamous marriages have taken place in mosques in Britain. These weddings do not have any validity according to British law, but they are valid as per Muslim law and the community. Similarly, in India, after the State changed the Hindu law in 1955, Hindu bigamous marriages, which used to be legal, have become illegal. Yet some do take place and the second wife often enjoys the status of wife in the community rather than of mistress.
At first glance, it might seem that all marriages recognised by communities but not by the State must be bad for women and backward-looking. However, this is not true. Historically and even today, many communities are ahead of the State in their willingness to recognise unions that the State refuses to validate.
Take the example of religious minorities. Prior to 1753, the British government did not recognise any marriages that had not been performed by the Anglican Church. Therefore, Quaker and Jewish marriages were not recognised as legal. This is because the State recognised only one religion as legitimate — that of the Anglican Church. But Quakers and Jews did marry and considered themselves married. Were these marriages or not? They were married in the eyes of their own communities and of other enlightened people, but not in the eyes of the State. Looking back today, we would say that these unions were marriages, even though the State did not recognise them.
A similar question arose in India when the 19th century reformist sect, the Brahmo Samaj, began performing a simplified Hindu wedding ceremony. In 1868, a court declared these marriages invalid, because orthodox Hindu leaders did not consider the Brahmo Samajis Hindus. To remedy the situation, the first civil marriage law in India, the Special Marriage Act, was passed in 1872. It created a huge controversy; those arguing in its favour pointed out since so many forms of Hindu marriage already existed, the Act was just adding another one.
The Indian government’s refusal to recognise same-sex marriages performed by Hindu priests place these marriages in a situation analogous to that of Quaker and Jewish marriages in the 18th century and the Brahmo marriages between 1868 and 1872. Like Christian priests, Hindu priests too vary in their approaches to marriage. A Hindu Shaiva priest I spoke to in 2002 said that he knew that other priests in his lineage would be shocked by his officiating at the marriage of two women. Having thought about it, however, he had become convinced that it was the right thing to do, because marriage is a union of spirits and Hindu texts clearly state that the spirit is neither male nor female.
The Hindu Marriage Act states, “A marriage may be solemnised between any two Hindus, if the following conditions are fulfilled.” The list of conditions prohibits bigamy, insanity, marriage before the age of 21 for the groom and 18 for the bride, and certain forms of biological relationship between the two, unless these forms are permitted by community customs. The gender of the ‘two Hindus’ is not stated. However, gender is assumed and appears in the third requirement: “The bridegroom has completed the age of 21 and the bride the age of 18 at the time of the marriage.” The terms ‘bride’ and ‘groom’ appear many times thereafter in the Act. Most people would assume that a bride is biologically female and a groom male. But this isn’t the only possible understanding of who a bride is and who is a groom. In most of the lesbian weddings reported in India over the last two decades, one woman presented herself as the groom and the other presented herself as the bride. Several couples performed the rite of the groom by putting sindoor in the bride’s hair-parting.
When two women in India publicly claim the right to marry, they seem to rest this claim in part on their presentation of themselves as a couple in which one woman is the bride and the other the groom, even though both are female. The degree to which the families and the community accept this claim often appears to be inseparable from the degree to which they accept the marriage. Some communities are thus able to integrate female-female marriage into their interpretation of Hindu law, by recognising one woman as the groom and the other as the bride.
This, however, does not always work. Raju, who married childhood friend Mala in December 2004, had short hair, wore jeans and leather jackets, and had a male-sounding name while Mala wore bangles, a symbol of marriage. After their marriage, which was conducted by a Hindu priest in Delhi, they returned to their hometown, Amritsar, where Raju told reporters, “We have vowed to live together for the rest of our lives as husband and wife.” Mala threatened to commit suicide if they were forcibly separated, and said, “I have left my family for her.” But their families and neighbours remained extremely hostile and boycotted them, so they had to go into hiding. This social pressure was in part responsible for the couple’s separation later.
Can the democratic State prevent people from entering into same-sex unions or punish them for doing so? Unlike bigamy, same-sex marriages are not punishable in India or the West because marriage is not equivalent to the performance of any sexual act. Even the police seem to recognise this distinction. When two Muslim men, Harfan, 28, the groom, and Mustafa, 22, the bride, got married in Garhmukteshwar, Ghaziabad in 2004, Harfan’s relatives handed both men over to the police, but the police refused to arrest them, because while sodomy is a crime in Indian law, same-sex marriage is not. If the registration of marriage is made compulsory, it will not stop same-sex couples from marrying. However, enforcing it will undermine India’s uniquely respectful approach to diversity, and the unique opportunity we have to add same-sex marriage to this diversity without going through protracted legal battles — simply by recognising the marriages that are already taking place by customary ceremonies.
Ruth Vanita is Professor at the University of Montana and was founding co-editor of Manushi. This is an edited extract from Law Like Love: Queer Perspectives on Law, edited by Arvind Narrain and Alok Gupta, Yoda Press. The views expressed by the author are personal.