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To the best of my knowledge, the traditional law books neither allow
them nor do they specifically prohibit them. One has to remember that
there is no institution strictly analogous to a Church in Hinduism,
which can take official stances on such issues. Marriage is usually seen
as a rite of passage, by which a man enters into the stage of the
householder. As a householder, he has to perform certain dharmas, which
can only be done with a wife. The law books assume that a man will marry
a woman, and concern themselves with the regulation of dharma. Part of
this dharma includes a responsibility to get sons who can offer
libations to the ancestors, unless of course one becomes a monk without
ever marrying. Inasmuch as a gay marriage will not produce sons, the law
books would not consider it a marriage in any sense of the word. Note
that the laws about ensuring progeny are motivated by the concerns of
repaying the debt to one's ancestors that one is born with. Unlike the
standard variations of the Christian dogma, the Hindu laws about
marriage do not originate from a concept of sex as sinful, which can
only be acceptable in a heterosexual marriage. Of course, celibacy is a
virtue for the student and for the monk, but not necessarily so for the
householder.
Some law books, e.g. the Manusmrti, prescribe that a man who enters into
sexual relations with another man loses his caste. I don't think there
is a specific injunction in this regard with respect to women. In the
old days, loss of caste, however, usually meant social ostracism.
Nowadays, loss of caste does not mean anything very significant for most
Hindus. People can always band together and form their own caste, as has
happened throughout the centuries.
That said, it is worth remembering at this point, that the Hindu law as
it stands today, has been modified to a significant extent after Indian
independence. The laws enacted by the Government of India apply to
Hindus who are Indian citizens. Since most Hindus in the world are
Indian citizens, these laws govern the lives of a large section of the
Hindu population in the world. There is a law in the Indian Penal Code,
left over from the British Colonial days, that outlaws sodomy. This law
is essentially identical to the corresponding British law, but it has
never been used in any case as famous as the one with Oscar Wilde. As an
aside, the modified Hindu law allows only the State to enact any laws
governing Hindus, the religious institutions have essentially been left
powerless to decide. There can no longer be writers on Hindu law who
follow in the tradition of the Smrtis, the Mitakshara etc. Any legal
aspect among the Hindus has to be decided by the elected representatives
in Parliament now.
The concept of being gay, and finding social acceptance for a gay
relationship has not impinged itself significantly upon the Hindu
consciousness. The modern Western preoccupation with defining one's
identity by one's sexual orientation has not affected Hindus in a
significant enough way for the law makers to take notice of it. This is
not to say that there are no gay men among Hindus, but Hindu society is
structured in such a way that gay men and women probably lead two lives.
That is as far as the legal aspects are concerned. However, there is a
lot of religious gender bending that has been fairly well documented and
that might afford something of a recognized outlet for homosexuals. For
example, the conception that all human souls are feminine in nature, and
that Krishna is the only masculine soul, has led to a sect where men
dress themselves up in women's clothes and enact secret rituals. There
are also the Hijras (mainly eunuchs, i.e castrated males, but quite
often a non-castrated homosexual male diguised as one), who are
ubiquitous on the streets of any large north Indian city. To read more
religious conceptions of gender roles, check the digest archives of the
RISA (religion in South Asia) list at
http://www.acusd.edu/~lnelson/risa. There was some discussion about
related issues earlier this year. For more information about the Hindu
legal positions on marriage, read the "History of Dharmasastra" Vols.
1-5, by P. V. Kane.
S. Vidyasankar
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