Section 5 of the Hindu Marriage Act 1955.
N.K.Assumi
(Querist) 23 August 2008
This query is : Resolved
Section 5 of the Hindu Marriage Act 1955, says marriage may be solemnized between any two hindus......... does it mean that marriage can be solemnized between any two male or female hindus? It appears that the act permits lesbian marriage etc?
SANJAY DIXIT
(Expert) 23 August 2008
"Marriage may be solemnized between any two hindus...."
Section 5 of the Hindu Marriage Act does not get the end here with these words. We should read the section in whole for its correct interpretation.
Hindu Marriage Act never permits lesbian marriage etc.
Murali Krishna
(Expert) 23 August 2008
I request you to go through, Section5 of the Act again. Section 5 (iii) specifically prescribes minimum age for bride as 18 years and 21 years bridegroom.
This clearly indicates, that the marrige is between a male and a female and hence no other interpretation is possible.
N.K.Assumi
(Querist) 24 August 2008
Dear sanjay,Srinivas and Murali,
That is a very good answer, but section 5 of the Hindu Marriage Act 1955, has to be read with section 11 of the Act, which speak about Void marriage and section 11 does not specify Clause (iii) of section 5 of the Act as one of them. The golden rule of interpretation is that the words have to be given its natural meaning and we can not read words into the Act which is not there as to do so would mean Legislation in the form of interpretation. As such we can not interprate the Act like the law of contract and say that biological is the criterion in the Act, though it is not there.
Judges are like Lion but they are like a Lion under Solomon throne and not above Solomon throne.
Murali Krishna
(Expert) 24 August 2008
Dear Assumi, Section 11 of HMA deals with Void marriages. On a petiton by either of the party, the marriage has to be declared as null and void, if it contravenes, Sec 5(i), (iv) & (v).
However, your question is that whether the term "between two hindus" can have the meaning of two males or females.
My answer is in that respect. I have quoted, Sec 5(iii) for the purpose of interpretation that the term two hindus means two males or females. In Section 5 (iii), the Act specifies the words bride and bride groom which obviously refer to male and female.
Further, the word "Marriage" has the meang of 1. "The mutual relation of husband and wife", 2.The institution whereby men and women are joined in a special kind of social and legal dependence for the purpose of founding and maintaining a family"--Webster's Dictionary.
I therefore understood the term between two hindus, has to be read in to the context of the Act, and it has to be interpreted so.--Further, one of the golden rules of interpretation is that, it is to be done to achieve the purpose for which the Act was legislated, but not to infuse things which were not in the contemplation of the legislature.
kumar sachin
(Expert) 24 August 2008
sanjay bhai has perfectly replied
lesbian marriage is not at all allowed under HMA
SANJAY DIXIT
(Expert) 25 August 2008
Dear Assumi,
A few more words I want to add--
Here in s.5 "two hindus" doesn't denote one male-one female, two males or two females. As this act applies to Hindus only so it denotes that s.5 is meant for only two hindus, not for one hindu-one muslim, one hindu-one christian etc.
Guest
(Expert) 25 August 2008
Hindu Law being a customary law having an history of more than 4000 years, is more like a religious law. The marriage under this Act is like a sacrament by the fatherinlaw, his daughter to the bride as a sacrifice. (KANYADHAN). Never in the history of the Hindu Law there whave been marriages of same sex.
But such practice is not new in India. You will find in the many ancient sculptures lesbain and gay act and even beastility. Only thing we donot have documentry proof as to how these things were delat with in those days.
N.K.Assumi
(Querist) 25 August 2008
Thank you all for your kind participation, it's getting more and more interesting and if permitted I may also refer to some old hindu text on Yama and yami etc, but those are not relevant with the present issue as we are discussing the Act of the Parliament. Two stone means two stone and not one stone and one marble.One thing should be clear and that is our emotion and sentiments should not blind us to the reasons of the law as stated in the famous S.P Gupta case by the SC, and lets discuss with open mind as I am afraid its hindu religious matter and BJP may jump on me.
Please look at Section 5 that clause (i)(vi) and (v) does not relate to our topic which is found in Section 11 or in 12 which speak about void and voidable marriage.
