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Indic View on Homosexual Marriages: A Policy-Legal Brief

This policy brief has been authored for IndicJIL Talk to examine the status of same-sex marriages in the view of Indic culture. It will include the study of determining the status of LGBTQ+ persons vis-a-vis the Dharmashastras, analysis of modern legislations governing marriages, and potential amendments, if any, which can be done to the existing legislations to ensure compatibility of same-sex marriages and Indic world view.


Introduction

There have been several discussions regarding the acceptability of LGBTQ+ community in the Indian society. These discussions have majorly employed a western lens to largely advocate that the LGBTQ+ community has been neglected and faced aversion in India. While there have been attempts by organizations such as Hindu American Foundation to demonstrate that the Indic worldview is largely acceptable of the LGBTQ+ community, it would still require a detailed understanding to have an understanding of the status quo and the need to decolonise policy making which still suffers from a colonial legacy. The process of decolonisation is happening at multi-fold levels. The traditional Indic worldview is being employed to advocate for certain changes in the way policies are made and also review of specific legislations as far as their compatibility with the Indic fold is concerned.

As far as the review of legislations affecting homosexuals are concerned, a petition was filed in the Delhi High Court seeking recognition of same-sex marriages under the Hindu Marriage Act, 1955 (2020). It is reported that the petition was filed after a couple were unable to register their marriage after solemnising it in a temple (Menon, 2020). The petition seeks to recognise the rights of LGBTQ+ persons under the Special Marriage Act, 1954 also.

In 2017, the Hon’ble Supreme Court in the case of Navtej Singh Johar v. Union of India (2018) decriminalized homosexuality. The Supreme Court had read down a part of Section 377 of Indian Penal Code, enacted by the British during the colonial period, which categorized homosexuality as ‘unnatural’ and criminalized the same.

However, it is to be noted that mere decriminalization of homosexuality does not necessarily provide legal recognition to marriage between homosexuals. This means that while homosexuality will not be treated as a crime under penal laws, it still does not validate a marriage between homosexuals. In India, personal laws governing marriage, maintenance, inheritance, adoption and guardianship are according to the identity with which a person identifies himself/herself. For example, it is the Muslim Personal Law which governs several aspects of Muslims in India.

Even though it has been decriminalized for civilians, it has been reported that homosexuality is not permissible in the Indian army. According to the report, the then Army Chief is quoted to have said, “We are neither modernised, nor westernised. LGBT issues are not acceptable to us” (Swarajya Staff, 2019).

Since the Supreme Court merely decriminalized homosexuality, which is a secular penal law, there is no legal framework which recognises any marital union between LGBTQ+ persons. While it is true that it may not be possible to recognise the same under personal laws of few religions since it is considered to be sinful (Gander, 2017). Notions of Victorian morality had penetrated to the process of law-making in the colonies disregarding the local customs and practices. While progressive thinking has penetrated the Abrahamic worldview, there are still elements of extreme orthodoxy which can be considered to be exclusionary and intolerant in nature. There are a few instances which may demonstrate the same. A notable Muslim Cleric held that homosexuality is against the order of nature and it would lead to moral decadence and disorder (Swarajya Staff, 2018). As a matter of record, The Apostolic Alliance of Churches, Utkal Christian Council and Trust God Ministries were the main parties in the Supreme Court which opposed decriminalizing homosexuality (Chaturvedi, 2018).

It may be held that the Indic view has been different. It may be asserted that there is a potential room to accommodate any changes in law as far as personal laws with an Indic worldview are concerned.


Traditional Indic Worldview on LGBTQ+

The Indic worldview may be studied with reference to Srutis and Smritis primarily. This is due to the fact that they aid us to conceptualise the social structure and the practices which existed then. Since Srutis and Smritis are governed by a superior concept of Dharma, it would be relevant to study the same by holding Dharma as the grundnorm. Further, it would be necessary to look into the status and position of the LGBTQ+ community before proceeding to analyse the legal validation under the traditional Indic worldview.

The Srutis on LGBTQ+ Community

The Srutis, or more precisely the Vedas, are silent on the aspect relating to homosexuality. It neither opposes nor embraces homosexuality. The silence of the Srutis on the matter relating to homosexuality is probably the reason for a lack of consensus in the Indic fold regarding the issue. The Srutis do not address this issue or even social issues as a matter of fact (Voruganti, 2018).

However, a few commentators point to an alleged verse in the Rig Veda which reads as ‘Vikriti evam prakriti’ meaning “what seems unnatural can also be natural” (Rastogi, 2017). Some commentators have interpreted this particular verse to provide a principle-based and philosophical justification to homosexuality emanating from the Vedas. In contrast, the very existence of this verse in the Rig Veda has been questioned (Misra, 2020). The verse is claimed to exist in the Rig Veda by Stephen Hunt in an academic writing. However, no particular reference has been provided to indicate the source, or even the verse number for the purpose of authenticating such reference. The author attempted to find the aforementioned verse in English translation of Rig Veda (Griffith, 1896) (Hindu Online). However, no such verse or quotation could be found in the Rig Veda as it has been claimed.

While it is true that an inference could have been made that justified homosexuality directly from the authority of the Vedas, it would be contingent upon its existence. Since there is an ambiguity over the existence of the verse which is sought to validate the acceptance of homosexuality in the Vedic times, it would be reasonable to not infer anything regarding the issue as far as the Vedas are concerned. It would be prudent to consider the other sources of Hindu law and philosophy to ascertain the acceptance of homosexuality in Hinduism. However, it is also necessary to point that there is no evidence of homosexuality as a disqualification for attaining Moksha. The Hindu American Foundation policy brief states, “LGBT person who lives selflessly and has mastered his or her impulses (sexual or otherwise) is actually closer to moksha than a non-LGBT person who is a slave to desires. Hindus cannot point to anything in the sruti texts that supports treating LGBT persons as being inferior to non-LGBT persons, let alone support their persecution” (Hindu American Foundation, 2016).


Vedanta Philosophy and Gender Fluidity

Vedantic philosophy may be considered as one of the most authoritative sources in Hinduism since it comprehensively deals with various concepts of Hinduism. It also provides a principle-based justification to various concepts of Hinduism. As far as the concept of gender is concerned, it is viewed that the enunciation of concepts in Upanishads entirely support the concept of gender fluidity and view it as a spectrum (Merchant, 2014).

In order to demonstrate that gender fluidity can be ascertained from the Upanishads, there have been attempts to primarily describe the nature of God or Brahman, as provided. This in a way is considered to be a higher norm within which gender fluidity may be accommodated. The totality of the ultimate reality is beyond comprehension and much more complicated than it seems. Non-dualism or Advaita philosophy considers the soul and the Brahman to be one (Merchant, 2014). With the nexus between the Atman and Brahman enunciated by the sayings like Aham Brahmasmi (I am the Brahman) and Tat Tvam Asi (This is that), it is a logical inference that the nature of Atman and Brahman are the same. It follows that the Atman is the true identity of the individual, with the body being only a transient.

Since the Brahman cannot be limited to one particular gender and considered to be gender-neutral, it logically follows that the Atman cannot be ascribed to a particular gender as well (Merchant, 2014). The Atman is the true identity of the individual cannot be limited by the artificial constructions of the concept of gender. Rutvij Merchant notes, “This suggests that the binary of male and female is a constructed difference that arises in the temporal world, with no individual in reality being either completely male or female, thus implying that gender is a spectrum” (Merchant, 2014).

However, this understanding may not be accurate since certain aspects of human life are considered beyond the boundaries of the physical world. For instance, Moksha is attained by Atman, which is distinct from one’s physical body and personality (ego), as well as outer attributes such as race, caste, gender, and sexual orientation (Hindu American Foundation, 2016). It would not be prudent to point out the gender neutrality of the Brahman and Atman since it deals with a completely different aspect of life. Hence, it would seem logical not to conflate different concepts of Vedantic philosophy in an attempt to demonstrate the acceptance of homosexuality or gender fluidity in Hinduism.


Smritis and other texts

The Smritis contain socio-religious laws and customs which are limited by time, place, and circumstance (Hindu American Foundation, 2016). Some of the notable Smritis include the Manu Smriti and the Yajnavalkya Smriti. The Smritis are subject to change with the evolution of circumstances prevailing in society. As the acclaimed author Sanjeev Sanyal puts it, “[T]hink of Sruti as the underlying operating system and the Smritis as being apps. You can keep adding apps and changing apps on the same operating system” (Sanyal, 2016). This is to suggest that the Smritis can be altered, modified or even replaced with the changing circumstances.

The Smritis too have not advocated harsh punishments for homosexuality. Gurudev Sri Sri Ravi Shankar, Spiritual Leader has also explicitly stated that homosexuality is not a crime in Smritis. Hindu Academic Professor Arvind Sharma notes in his essay on Hinduism and Homosexuality “It appears from the foregoing account that, save for the emphasis on renunciation, Hinduism is a sex-positive religion in relation to all the other…ends of human life….” (Hindu American Foundation, 2016). Manu Smriti, which is often cited by scholars and academics to highlight the regressive practices in Hinduism also provides for ‘bathing with clothes on in public’ as a punishment.

It is said that other texts such as the Arthashastra and Kama Sutra mention LGBT persons in various professions who were not subjected to any kind of persecution (Hindu American Foundation, 2016). It is claimed that the Kama Sutra also mentions homosexual marriages based on “great attachment and complete faith in one another” (GALVA-108). It seems like the Srutis and Smritis have largely been nonchalant to the LGBT community. Rather, it is said that the Arthashastra imposes a fine for publicly mocking and insulting the third-sex. An inference may also be drawn that this indifference highlights that the LGBT persons were not considered to be inferior as far as notions of equality are concerned.

There are other Smritis which are not as popular as the Manu Smriti which deal with homosexuality explicitly. Narada Smriti mentions 14 types of impotent men with women which includes mukhebhaga (who has oral sex with other men), the sevyaka (who is sexually enjoyed by other men) and the irshyaka (the voyeur who watches other men engaging in sex) (GALVA-108). In a similar way, the Sushruta Samhita too mentions five types of impotent men with women known as kilba. They are as follows: (GALVA-108)

● the asekya is the one who swallows the semen of other men;

● the saugandhika is the one who smells the genitals or pheromones of other men;

● the kumbhika is the one who takes the passive role in anal sex;

● the irshyaka as the above-mentioned voyeur;

● the shandha is the one who has the qualities and behaviour of a woman.

The Sushrutha Samhita in verse 3.3.4. considers the third-sex child to be natural. It has been stated that “if the male sexual fluids (sukra) predominate at the moment of conception the child will be male, and if the female sexual fluids (sonita) predominate the child will be female. If both are equal, either male and female twins or a child of the third sex will be the result” (GALVA-108). It is said that a similar verse is also found in the Manu Smriti.


Some instances in texts regarding homosexuality

The highly acclaimed text Mahabharata has characters such as Shikhandi, Chitrangadha, Brihannala who represent varying sexual and gender orientations, implying that gender was considered to be a spectrum. It is further important to note that these characters were not discriminated against for the reason of having a different sexual and gender orientation from the rest (Hindu American Foundation, 2016).

The birth of Lord Ayyappa also points to the nuanced approach of Hinduism towards gender and sexual orientation. It is believed that Lord Ayyappa was born to Lord Shiva and Mohini (Lord Vishnu taking the form of Mohini). Originally, Lord Ayyappa is considered to be the son of two male deities if one was to use a gender binary.

Shatapatha Brahmana reportedly mentions an instance of Mitra implanting his seed in Varuna, both being gods of water, on every new moon night in order to secure the moon’s waning. It is claimed that the Skanda Purana also mentions an occasion where fire god Agni swallowed the semen of Lord Shiva by disguising it as an ascetic (GALVA-108). While it is true that these instances may be interpreted incorrectly by the commentators, it does not discount the fact that there was no explicit hatred and persecution of homosexuals.


Modern Hindu Law and Homosexuality

One of the submissions by the petitioners before the Delhi High Court is to provide legal recognition to marriage between homosexuals under Hindu Marriage Act, 1955 since Section 5 of the Act reads ‘marriage between two Hindus’ without any reference to gender identity (2020). While it is true that the prima facie reading of Section 5 does not refer to gender identity, there are other laws that implicitly denote that the marriage is to be between a male and a female. For example, Section 18 of the Hindu Adoption and Maintenance Act, 1956 (HAMA, 1956) clearly deals with the maintenance and right to separate residence of the ‘wife’. If the marriage is solemnised between homosexuals, then it would potentially lead to legal complications where a homosexual spouse would want to claim maintenance under the Act. Similarly, would such marriage also cast liability upon the father-in-law to provide maintenance to a widowed homosexual spouse under Section 19 of the Act?

If we were to consider the concept of adoption under HAMA, 1956, it clearly mandates that if a person to be adopted belongs to the opposite gender, then the age difference between the person taking a child in adoption and the adopted child is at least 21 years. This is primarily intended to prevent sexual exploitation of the adopted child. In the case of homosexuals, this would probably require modification as well.

Therefore, modern enactments would require a few amendments to accommodate homosexual marriages in its purview. It would require making the provisions gender neutral which has to be undertaken by the legislature.


Conclusions

With the available information, heuristics would surely imply that gender and sexual orientation is not viewed as a binary in Hinduism. While it acknowledges and recognises different types of sexual orientations which individuals may have naturally, there is no overarching evidence to suggest that homosexual unions were considered to be valid by law.

It would be improper to suggest that mere silence of the Srutis on the matter refers to implicit acceptance of homosexuality. Further, it would be improper to draw a nexus between homosexuality and the Vedantas based on the non-dualism or Brahman since they deal with a completely different aspect of life and considered to be beyond sexuality of an individual.

The more important source to regard that Hinduism has largely been accommodative of homosexuality can be noticed in the Smritis. There are different Smritis and commentaries to suggest that homosexuality was acknowledged, recognised and accepted in Indic worldview. While the verses which suggest the same may be disputed by other scholars, it largely does not discard the fact that there was no natural aversion to homosexuality.

Therefore, Indic world-view, as opposed to the Abrahamic outlook does not consider homosexuality to be a sin. It acknowledges that gender is a spectrum and does not reduce it to a binary. There is no evidence to suggest that homosexuals were persecuted, suppressed and considered to be inferior to the rest for the sole reason of their gender or sexual orientation. It can be prudently concluded that recognising homosexual marriages would not be in contradiction to the underlying framework of the Indic worldview since there are no signs of any incompatibility of the former with the latter.


References


Abhijit Iyer Mitra v. Union of India. W.P.(C) 6371/2020& CM APPL.22554/2020, New Delhi : High Court of Delhi, 2020.


Chaturvedi, Arpan. “Who Argued What in Challenge Against Section 377”. Bloomberg. [online]. 05 September 2018. [28 February 2021]. Available from: <https://www.bloombergquint.com/law-and-policy/who-argued-what-in-challenge-against-section-377>.


Gander, Kashmira. “Muslims, Jews and Christians on Being LGBT and Believing in God”. The Independent. [online]. 05 April 2017. [28 February 2021]. Available from: <https://www.independent.co.uk/life-style/love-sex/lgbt-muslims-christians-jews-stonewall-beliefs-god-faith-role-models-lifestyle-gay-lesbians-trans-bisexual-a7666846.html>.


Gay & Lesbian Vaishnava Association. “Homosexuality, Hinduism & The Third Gender: An Overview”. GALVA- 108. [online]. 2020. [28 February 2021]. Available from: <https://www.galva108.org/single-post/2014/05/15/homosexuality-hinduism-the-third-gender-a-summary>.


Griffith, Ralph T. H. The Hymns of the Rigveda. Kotagiri (Nilgiri) : s.n., 1896.


HAF. “HAF Policy Brief: Hindu Teachings Inclusive of LGBT People”. HAF. [online]. 16 June 2016. [28 February 2021]. Available from: <https://www.hinduamerican.org/press/haf-policy-brief-hindu-teachings-inclusive-lgbt-people>.


Hindu Online. “Four Vedas (English Translation).” Hindu online. [online] [Cited: 28 February 2021]. Available from: <http://hinduonline.co/DigitalLibrary/SmallBooks/FourVedasEng.pdf>.


Menon, Priya. “Same- Sex Union: Fight on For an Equal Marriage”. The Times of India. [online]. 05 October 2020. [28 February 2021]. Available from: <https://timesofindia.indiatimes.com/blogs/pet-igree/same-sex-union-fight-on-for-an-equal-marriage/>.


Merchant, Rutvij. “Hinduism and Homosexuality”. Swarajya Magazine. [online]. 31 October 2014. [28 February 2021]. Available from: <https://swarajyamag.com/culture/hinduism-and-homosexuality>.


Navtej Singh Johar v. Union of India. (2018) 1 SCC 791, s.l. : Supreme Court of India, 2018.


Rastogi, Vidula. “Pride and Prejudice”. The Hindu. [online]. 23 April 2017. [28 February 2021]. Available from: <https://www.thehindu.com/opinion/open-page/pride-and-prejudice/article18191721.ece>.


Sengupta, Hindol. “Calling Hinduism A Way of Life is Meaningless: Sanjeev Sanyal”. BoomLive. [online]. 22 August 2016. [28 February 2021]. Available from: <https://www.boomlive.in/calling-hinduism-a-way-of-life-is-meaningless-sanjeev-sanyal/>.


Swarajya Staff. “Homosexuality Against Law of Nature, Leads to Moral Decadence, Disorder: Top Muslim Cleric”. Swarajya Magazine. [online]. 07 September 2018. [28 February 2021]. Available from: <https://swarajyamag.com/insta/homosexuality-against-law-of-nature-leads-to-moral-decadence-disorder-top-muslim-cleric>.


Swarajya Staff. “Indian Army Can’t Allow Homosexuality, Adultery, Would Deal With Them Under Army Act: General Bipin Rawat”. Swarajya Magazine. [online]. 10 January 2019. [28 February 2021]. Available from: <https://swarajyamag.com/insta/indian-army-cant-allow-homosexuality-adultery-would-deal-with-them-under-army-act-general-bipin-rawat>.


Venkataraman, S. and Voruganti, H. “Section 377 No More: Evolving A Uniquely Hindu Perspective on LGBT Rights”. Swarajya Magazine. [online]. 06 September 2018. [28 February 2021]. Available from: <https://swarajyamag.com/ideas/section-377-no-more-evolving-a-uniquely-hindu-perspective-on-lgbt-rights>.

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