The Supreme Court of Vermont (USA) held on December 20, 1999 that the marriage registrar cannot refuse licence for marriage of two persons of the same sex. The court regarded the right to marry as a basic right, which could not be denied to two persons, only on the ground of gender.
It is not known whether the question is likely to reach the United States Supreme Court in the near future. However, the decision, if it stands, is likely to alter, radically not only the legal concept of marriage, but also social thinking about the institution of marriage. So far, one always took it for granted, the “marriage”, whether viewed as a ceremony, or as a relationship, necessarily implied two persons of different sex.
The changed judicial approach in this respect will necessitate not only a restructuring of the statutory framework, but also provide a good deal of new inputs in the sphere of the common law through the evolution of new rules. For example, if two males (or for that matter two females) can “marry” how will their mutual relationship be governedIJ How will they adjust their reciprocal rights and dutiesIJ If there can be a marriage between persons of the same sex, can there also be a divorce between the twoIJ The common law will have to grapple with all these questions. Then there are questions of an economic and financial nature. Is one of the parties to such a “marriage” (between two males) bound to maintain the other partyIJ
There is also the question of marital discord and infidelity. What does the legal position, say, if, after A and B develop a homosexual relationship and enter into a marital union with each other and B becomes unfaithful to A and develops a similar relationship with CIJ Would it amount to ‘adultery’IJ Or, take this, B develops a sexual association with C (another female) and eventually marries C. Can it be said that B is guilty of bigamyIJ For effectively dealing with such questions, the law will have to evolve totally new rules. It has to be pointed out that our existing legal framework is totally devoid of provisions in this regard, as it had never been thought of a martial relationship between members of the same sex.
Similar problems can arise in the law of evidence. One of the well known doctrines of the law of evidence is the doctrine of ‘Marital
privilege’. According to the doctrine, communications between spouse are ‘privileged’, and as long as the marital relationship subsists, one spouse cannot be compelled to disclose in court, any fact communicated to him/her by the other spouse. The rule on the subject is so strict and sweeping, that even a communication constituting an offence or disclosing a criminal design cannot be compelled to be disclosed in the court. The prohibition applies, even where the other spouse is being prosecuted for a heinous offence, - say murder. In India, this principle has been put in a codified form in Section 122 of the Indian Evidence Act, 1872.
Now, the precise question that can arise, in the light of the Vermont decision, is this can one say, that two males, X and Y, married to each other and living together should be regarded as ‘spouse’ to each other, so that communications made between the two are to be regarded as privileged in court IJ The law will have to answer this question, one way or the other, in due course.
If a new approach takes shape about the concept and institution of marriage, then some nice questions may arise in the sphere of the criminal law also. For example, the criminal codes of most countries recognize the offence of ‘harbouring’ and offender i.e. the act of giving food, or shelter to an offender.
But an exception is provided where the person harbouring and the person harboured are related to each other as husband and wife. Will the law agree to regard the parties to a homosexual or lesbian marriage as ‘husband’ and ‘wife’, in the context of the offence of harbouringIJ
At the first sight, it may appear that the problems dealt with above will not arise in India and that its discussion is therefore academic. However, all our past experience in India shows, that novel issues that first arose outside India, do come up before our courts, in course of time. For example, this has happened in the case of transplantation of organs, artificial insemination, in virtro fertilization, experimentation on human beings and the like. The day is not far, when Indian courts will be confronted with many other apparently novel issues.
(Dr Maharana is senior faculty member, Jeypore law College, Jeypore, Koraput, Mob: 9438170563)