Neha Chaudhary and Jyotiraj Singh Bhadauria
In the revolutionary judgement of Navtej Singh Johar v. Union of India, the Supreme Court of India struck down Section 377 of Indian Penal Code [hereinafter ‘IPC’], a colonial law concretizing the rudimentary outlook of the majority that prohibited same-sex relationships, igniting a desire for equality for the country’s LGBT+ community. The civil liberties of the LGBTQ+ population were emancipated from the shallow bonds of the gender binary. Most parts of the society applauded the decision, and the community is now significantly stronger as a result of it, but what comes aftermath was the challenges that they still have to face regardless of the law. The Indian LGBT+ community members encounter specific social and legal challenges which have never been faced by the straight population.
The great law of the land which struck the colonial-era law is still not ready to accept the minuscule fraction of the total population as a couple and grant them rights incidental to homosexual relationships. No doubt they have accepted the individuality but what about their basic rights of marriage, adoption, inheritance, neutral rape laws, etc. which every layman enjoys? Because of the legislative outlook that lacked to overlook the other aspects of a relationship, these people are still ‘alien’ to society and people take a back seat on the same issue. The government must take action and offer equal rights to the LGBT+ community as it does to the non-LGBT population. The article emphasizes that decriminalizing same-sex conduct alone is insufficient for proper acknowledgement and freedom of the LGBT community, they must also be granted requisite legal rights. It also proposes several different methods for achieving recognition.
K.S. Puttaswamy v. Union of India, a landmark case on the right to privacy, upheld an individual’s personal liberty free of state intrusion and justice. “Protection of sexual orientation is pivotal to the fundamental laws enshrined in Articles 14, 15 and 21 of the Constitution,” Justice Chandrachud stated. Section 377 wasn’t pardoned wholly, it only decriminalized the relationship between consenting adults, non-consensual homosexual relationship still attracts the criminal penalty and is an offence under sec 377 of IPC.
Marital Rights: Still a Reverie
As previously noted, one of the countless reasons for the failure of the notion of normalising homosexual relations was the legislature’s failure to address the necessity to modify matrimonial laws and the lack of “stamp of marriage.” Most of the HMA and IMA sections use phraseology that depicts marriage as an affair between a man and a woman or between a bride and a bridegroom. In the landmark judgement of Lata Singh v. State of Uttar Pradesh, the apex court construed the right to marry to be a part of Article 21 of the Indian constitution and ruled that once a person attains majority, he or she is free to marry whoever he or she wishes. Even under the Hindu Marriage Act of 1955, a marriage between two Hindus may be solemnised if the conditions set forth in the act are met, namely, “the bridegroom must be at least 21 years old, and the bride must be at least 18 years old.” The terms ‘bridegroom’ and ‘bride’ clearly refer to heterosexual marriage.
The Special Marriage Act of 1954 states that when an inter-religious marriage is sought under the SMA of 1954, it must be between a man and a woman, as is evident from Section 4(c) of the Act, which states that the parties have to be a male not below 21 years and a female not below 18 years. Even the uncodified Muslim law also anticipates marriage between people of different sexes. It deprives gay couples to get married and registered under these acts. Various regulations supervising marriages, forbidden relationships or divorce, utilise heterosexual undertone in their wording which is absolutely contemptuous to the same-sex individual. Recently, Tushar Mehta (Solicitor General of India), opposed PIL for homosexual relations, said, “Our (Indian) legal system, society, and values do not recognise same-sex marriages.” He further argued that “The 2018 judgement merely decriminalises homosexuality or lesbianism, nothing less.“
Such rigid dedication to the archaic beliefs and notions which deny the sacred right of marrying is clearly incompatible with the notion of the right to life and freedom of individuals entrenched in Article 21 of the Constitution. This outlook leaves haunting an unsettled problem of domestic abuse in same-sex relationships. Countries all across the globe have legalised the marriage of homosexual couples. The globe is going toward liberal LGBTQ+ rights but, despite its 2018 ruling, India’s government does not appear in a mood to give up orthodoxy and conservatism.
Inheritance, Adoption Laws and Homosexual Void
“We still cannot marry; we still cannot adopt. We have many, many years before any of this (happens),” Reyansh Naarang, an LGBT+ rights activist, told Nazariya in New Delhi. In India, Hindu Succession Act 1956 governs the general laws of succession under Sections 8 and 15 of the said Act. The provisions of Section 8 and section 15 of the Act included in the schedule apply to a widow as heir to a dead man (i.e., without leaving a will) and to a husband as heir to a dead woman respectively. The phrases used ‘widow’ and ‘husband’ definitely mean a man who is wedded to a woman, and not homosexual couples. Muslims in the nation have no codified rights of property and are largely controlled by either of the two Muslim personal legislation schools – Hanafi and Shia. A brief overview of Muslim law demonstrates that a woman receives 1/8 of her husband’s property after they die if they have children. If no children are born from the marriage, she is entitled to a quarter of the property. A daughter receives half the portion of a son.
In sharp contrast, when a spouse dies, the husband obtains 1/4 of his wife’s possessions. If no kids are born out of marriage, the husband has the right to half of the property. Adoption among Muslims and Hindu is not even allowed unless the adopting parties are married. In 2016, the US Supreme Court concluded, in Obergefell v. Hodges, that all 50 states in the USA had to recognise homosexual weddings in the same way as marriages between individuals of opposite sexes with the same rights/responsibilities but in India, it still seems like a nightmare. In 543-page vast judgment, the 5-judge bench hasn’t even talked about ‘Inheritance’ once.
The Supreme Court of India has upheld in the case of Shakti Vahini & Ors v. Union of India and Shafin Jahan v. Asokan K.M., – That sexual autonomy and the freedom to select a partner is an intrinsic facet of the right to life and autonomy, that the choice of the person is a component of dignity and is thus guaranteed by Articles 19 and 21 of the Constitution. The aforementioned data creates a huge gap for a Muslim couple if they are married of the same sex. These homosexuals must first struggle for their right to be married between homosexuals in order to gain the right of lineage following marriage.
Conclusion and Suggestions
LGBTQ+ was very prone to social and professional aggression, harassment, discrimination and harm. For years, they have been ostracised and vilified, and so forth. LGBT persons are prohibited from serving openly in the Indian Armed Forces.
There is not even official data on the LGBT+ population in the world’s chief democratic country. For this community, social acceptance is still farfetched and they can only survive peacefully in society through legal recognition. There is an urgent need for gender-neutral matrimonial laws and laws dealing with maintenance, adoption, inheritance, divorce, domestic abuse, rape laws, etc. further amendments can also be made under the pre-existing laws which would provide them with equal rights and protection as that of heterosexuals.
(Authors are third-year students at Dr Ram Manohar Lohiya National Law University, Lucknow).
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