Special Marriage Act: India
This is a collection of articles archived for the excellence of their content.
Debates in Parliament
TOI+ looked into Parliament records from seven decades ago and found that in the debates preceding the enactment of the 1954 law, members of Parliament (MPs) discussed much more than just homosexuality.
Marriage is something much more than sex relationship...I am by no means minimising the sex part of it but I say it is something bigger than this business of talking in terms of sex alone... Jawaharlal Nehru, the then PM
While the larger debate was about the Special Marriage Bill (that later turned into an Act) potentially clashing with personal laws and customs, parliamentarians in 1954 also discussed concerns ranging from incest to eugenics (the study of how to arrange reproduction within a human population to increase the occurrence of heritable characteristics regarded as desirable), sexual urges, the idea and purpose of marriage, and even North-South cultural divides regarding the perception of incest.
At one point, the debate became so much about sex that the then Prime Minister Jawaharlal Nehru had to intervene, saying:
“Marriage is something much more than sex relationship. Marriage is companionship; marriage is comradeship; marriage is helping each other, cooperation in the task and all kinds of things. I am by no means minimising the sex part of it but I say that it is something bigger than this business of talking in terms of sex and sex alone, as if that marriage meant a sort of wallowing in the bed all the time? I do not understand.”
‘Love is blind’
During the debate on the Special Marriage Bill, Congress leader JB Kripalani, popularly known as Acharya Kripalani, told the Lok Sabha: “I do not understand how every man can marry every woman whom he loves; or every woman can marry every man she loves. It will only create confusion. I cannot also see how you can marry only for love. It is absurd.”
Kripalani further argued, “It is [a] very great risk, especially for males. A woman gets her freedom when she is married; men lose theirs when they are married… This subject must be treated seriously and with dignity…We here talk of love without understanding what it is. It is said (that) love is blind.”
Kripalani also highlighted eugenics as a concern, saying: “Marriage is also, if I may say so, a question in eugenics…It is therefore that in social legislation like this we have to be extra careful. It does not matter how much time is spent on this bill.”
Several MPs evidently feared that the Special Marriage Act would pave the way for collapse of the system under which marriages were arranged by families after taking into consideration age, caste, faith and other factors. But their main concern seemed to be eugenics. In the Lok Sabha, Congress lawmaker MA Ayyangar came up with a horse analogy to make his point. He argued: “Any kind of marriage between any man and any woman can produce children. Take the case of a race horse. Do you allow it to mix with a draught horse? Selection is made to ensure good quality of the progeny. But in the case of marriages under this Act anybody can mix with anybody and produce any kind of stupid children In this world!”
A question of ‘affinity’
In the last two weeks ahead of the bill being passed by the Parliament in September 1954, all sorts of arguments were thrown around in both Lok Sabha and Rajya Sabha.
If NB Khare of the Hindu Mahasabha was concerned about people “changing sex” in “Holland and Denmark” about which he said he had read in the papers and feared that it could start happening in India too, Jai Soorya of the People’s Democratic Front wanted homosexuality to be specifically added in the bill as a ground for divorce.
Discussing the bill in the Rajya Sabha, then law minister Charu Chandra Biswas made an oblique reference to the possibility of same-sex marriages in future. He asked: “Supposing somebody has an affinity for a person of the opposite sex, then there is nothing wrong…if somebody goes and disturbs that affinity will he not have the same remedy open to him?”
Parliament records also show that at one point during the debate when Congress's R Venkataraman said, “To my mind the object of this bill is to provide a uniform civil code, but optional to the people of India. The object of this bill is to allow a citizen of India, irrespective of his caste, creed, religion...”, it was Hindu Mahasabha’s VG Deshpande who quickly interjected saying, “Or sex [read: gender]”.
‘Horror of incest’
The Centre on April 27 told the Supreme Court that arguments about freedom of sexual orientation and autonomy may be raised in future to challenge incest prohibition, adding that incest is not uncommon in the world but prohibited all over – an argument which the court dismissed as "far-fetched".
Parliament records from 1954 show that incest was, in fact, a subject that was thoroughly discussed before the Special Marriage Bill was passed. The bill chalked out lists of “prohibited relationships” to not allow registration of incest marriages under the law. While several MPs feared incest and stood in support of the prohibitions, others highlighted local customs and challenged how a law could interfere in such personal affairs.
“It is remarkable that the world over, to whatever religion a person may owe allegiance, there is horror of incest,” argued Tek Chand, a Congress MP. “Having recognised to those feelings of horror of an incest, you have wisely provided in your clause 4 that persons within the prohibited degrees of marriage, which you have enumerated here in the Schedule, are banned from inter-marrying.”
But his party colleague Ahmed Mohiuddin differed. He told the Lok Sabha: “If by custom in a community marriage among cousins is permitted, it should be permitted here. Marriage between cousins is permitted not only all over the world, but amongst a large proportion of the Indian population, that is, Christians, Parsis, Muslims and others. It is very common. I do not see how it can be prohibited under any common civil code that may be adopted in future.”
Supposing somebody has an affinity for a person of the opposite sex, then there is nothing wrong… if somebody goes and disturbs that affinity will he not have the same remedy open to him? Charu Chandra Biswas, the then law minister
During one debate session, social worker-turned-politician Kamalendumati Shah came up with an argument which in the current-day context would seem like a logical-reasoning question in a competitive exam. Arguing against incest, she said: ‘‘My father’s wife became the mother of a son, who was, of course, my brother, and also my grandchild for he was the son of my daughter. Accordingly, my wife was my grandmother because she was my mother’s mother, I was my wife’s husband and grandchild at the same time— and, as the husband of a person’s grandmother is his grandfather. I am my own grandfather.”
Removing a North-South ‘curtain'
Chelikani Venkata Rama Rao of the Communist Party of India highlighted a North-South cultural divide as he argued against prohibited relationships.
“I want to appeal to our North Indian friends not to have a stone curtain before their eyes but to see beyond the Vindhyas and understand the customs and laws of the South Indians,” Rao told the Lok Sabha. “Most of our thinking is conditioned by things we are used to. People in South India marry their maternal uncles’ daughters. That is a very common thing but the wonderful list of prohibited relationships prohibits such marriages. This law prevents such marriages. It is not abnormal and therefore, I request my North Indian friends not to see things through their limited glasses only.”
But Charu Chandra Biswas disagreed, saying, “This is a law for the whole of India, not for any particular community, not for South India, only, but for South India, North India, East India, West India. And therefore the rest of India need not draw inspiration from South India.”
Returning to present day, the central government on May 3 told the Supreme Court that a committee headed by the cabinet secretary would be constituted to examine the administrative steps which could be taken for addressing "genuine humane concerns" of same-sex couples without going into the issue of legalising their marriage. But it remains to be seen whether this hearing will open the gates for more debates on matters pertaining to sexuality in Parliament, much like it happened seven decades ago.