AN EASIER UNION?

Indian marriage laws not as knotty as US’s

Have A Big Advantage Being Gender-Neutral

Dhananjay Mahapatra | TNN 

New Delhi: US law makers are proposing an amendment to the definition of marriage, which mandates the relationship to be between a man and woman, to bring it in line with judicial pronouncements legalizing same-sex marriages. 
    Will Indian Parliament need to amend the definition of marriage if our Supreme Court upholds a Delhi high court verdict decriminalizing same-sex relationships and if that ultimately leads to same-sex marriages? 
    Though marriage laws — the Hindu Marriage Act (HMA) and the Special Marriage Act (SMA) — were framed nearly 60 years ago, the framers had shown great vision by keeping it gender neutral and saving the ruling party of the headache to garner enough support in Parliament to pass an amendment to the definition of marriage. 
    Section 5 of HMA, which was enacted in 1955, says “a marriage may be solemnized between any two Hindus”. The SMA was enacted in 1954 to allow marriage between “any two persons” irrespective of the religion they professed. 
    The two phrases “any two Hindus” in HMA and “any two persons” in SMA, both of which do not refer to man and woman as in the US Constitution, would help the law getting applied to marriage between the same sex, if it materializes in the event of the Supreme Court agreeing with the view taken by the Delhi HC. 
    What Indian marriage laws were more worried about was the age and health of the “persons” getting married and to prevent any incestuous relationship. The only differentiation it prescribes is that the groom has to be 21 years and bride 18 years.
    Both marriage laws have fastened identical conditions on parties to a marriage: 

• No person has a spouse living at the time of the marriage (they have to be either single or divorced); 

•At the time of the marriage, neither party (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity; 

• The parties are not within the degrees of prohibited relationship (very near relatives) unless the custom or usage governing each of them permits a marriage between the two; 

• The parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

Source::: The Times of India, 28-03-2013, p.17.