Family Rights Of Homosexuals In India.docx

FAMILY LAW-I TOPIC: FAMILY RIGHTS OF HOMOSEXUALS IN INDIA 2018-19

INTRODUCTION The institution of marriage in society is generally regarded as extending only to male-female relationships. Same-sex relationships, regardless of their duration, are not legally recognized in most countries and as a result, homosexual partners are denied many of the legal and economic privileges automatically bestowed by marital status or any family rights. These include employment benefits, the ability to file joint tax returns and perhaps most importantly since the advent of AIDS -- health benefits and rights arising on the death of a partner, including interstate inheritance etc. In society at large many of these benefits are available to heterosexual de facto partners, but continue to be unavailable to homosexual partners. METHODOLOGY I have adopted Doctrinal method therefore collected data from various Books, Journals, articles, online databases and Newspapers etc. OBJECTIVES To explain the concept of homosexuality, their position in India, legal provision relating homosexuals and to show the need for legal family rights for homosexuals in India. CONCEPT OF HOMOSEXUALITY The word homosexual literally means as ‘of the same sex. Homosexuality is a sexual orientation characterized by sexual attraction or romantic love exclusively for people who are identified as being of the same sex. People who are homosexual, particularly males are known as ‘gay’, gay females are known as ‘lesbians’. That is homosexual marriages, sometimes referred to as gay marriage, indicates a marriage between two persons of the same sex. Scientists have carried on various researches to identify the causes of homosexuality in humans. The biologically-based theories for the cause of sexual orientation are favoured by most experts, which point to genetic factors, the early uterine environment, or both combinations.1 Many people feel that homosexual activity is unnatural and dysfunctional; however, biological research has shown that it is an example of a normal and natural variation in human sexuality, and is not in the control of an individual. HOMOSEXUALITY IN INDIA 1

allresearchjournal.com/archives/2016/vol2issue6/PartG/2-4-128-110.pdf.

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In India, homosexuality has been a taboo since a very long time. Marriage is considered to be a holy sacrament by Hindus, and union between persons of the same sex has been considered to be immoral and inappropriate. Since marriage is seen mostly from a religious angle, a gay marriage is presumed to be unholy and against God himself. It is believed by many Indians, that the concept of same sex unions has been brought by the Western countries, and it is this bad Western influence on the Indians that is leading to their rise. However, homosexuality is not a concept devised by the West, as many who oppose this notion believe. References of homosexuality can be found in our ancient literatures and scriptures, which reflect that the concept was prevalent in our society since ancient time. Rigveda, one of the four canonical sacred texts of Hinduism says ‘Vikriti Evam Prakriti’ (what seems un-natural is also natural), which some scholars believe recognises the cyclical constancy of homosexual/transsexual dimensions of human life, like all forms of universal diversities. 2 Historical literary evidence shows that homosexuality has been prevalent across the Indian subcontinent throughout history. SECTION 377 OF THE INDIAN PENAL CODE, 1860 Section 377 of the Indian Penal Code (1860) relates to Unnatural Offences and includes homosexuality within its domain. In India this Law relating to homosexuality was adopted from the British penal code dating to 19th century. Section 377 states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.”3 Similarly section 292 of IPC4 refers to obscenity and there is ample scope to include homosexuality under this section. SECTION 377 DECRIMINALIZED The issue had become a matter of debate in India, with one side equating it with ‘culture and tradition’ and the other with someone’s personal right of privacy. A timeline of the case5 July 2009: Delhi High Court’s landmark decision – homosexuality decriminalised In a landmark decision in 2009, the High Court of Delhi decriminalised homosexuality among consenting adults. The court held section 377 as ultra-wires with Article 14, 15 and 21 of the 2

lawctopus.com/academike/same-sex-marriages-in-india/.

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Indian Penal Code, § 377. Indian Penal Code, § 292.

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indianexpress.com/article/india/section-377-to-be-revisited-timeline-of-the-case-5016095/.

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Constitution of India. “We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21,14,and 15 of the Constitution,” a bench comprising then Chief Justice A P Shah and Justice S Murlidhar had said. December 2012: Supreme Court quashes High Court order The Supreme Court of India quashed the order issued by Delhi High Court. The apex court held that the order is legally unsustainable. A two-judge bench of Justice G S Singhvi and Justice S J Mukhopadhaya said that a “miniscule fraction of the country’s population constitute LGBT,” adding that less than 200 people have been arrested under the law in the past 150 years. The court left a scope of striking down the law and categorically said that the Centre is free to amend it. In 2014, Naz foundation filed a review petition which was quashed by the SC. Centre’s stand on the law Central government led by PM Narendra Modi said that it would take a decision regarding the law. In 2015, the BJP dominated Lok Sabha voted against the introduction of a private member’s Bill to decriminalised homosexuality. The Bill had been proposed by Congress MP Shashi Tharoor. Supreme Court reconsiders petitions regarding the law A group of well-known LGBT rights activists, S Johar, journalist Sunil Mehra, chef Ritu Dalmia, hotelier Aman Nath and business executive Ayesha Kapur. The petition, filed by well-known LGBTQ activists, claimed their “rights to sexuality, sexual autonomy, choice of sexual partner, life, privacy, dignity and equality, along with the other fundamental rights guaranteed under Part-III of Constitution, are violated by Section 377.” August 2017: SC upholds Right to Privacy In 2017, the Supreme Court held Right to Privacy as a fundamental right. It also observed that “sexual orientation is an essential attribute of privacy”. It said that the “right to privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. The judgment, which implicitly overrules its 2013 verdict, is likely to bear on this review. September, 2018: SC decriminalises Section 377 A five-judge Constitution bench led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, struck down Section 377. However, The judges also explicitly said that they only ruled on the constitutional validity of section 377 and were not looking at it in terms of other rights such as those related to marriage or inheritance MARRIAGE UNDER DIFFERENT PERSONAL LAWS IN INDIA

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In India, citizens have a choice to be married under their various personal laws, or a common law of civil marriage. While none of the acts have explicitly defined marriage as a union between a man and a woman, it has been interpreted and understood to mean that a marriage is always between a man and a woman. Words like ‘bride and bridegroom’, ‘husband and wife’ imply that the laws are valid only for couples of the opposite sex. The Hindu Marriage Act, 1955, is applicable for Hindus, Sikhs, Jains and Buddhists. Section 5 of this Act says that a marriage may be solemnized between any two Hindus, if the bridegroom has completed the age of twenty- one years and the bride the age of eighteen years at the time of the marriage.6 Also, Section 60 of the Indian Christian Marriage Act, 1872, lays down that the age of man intending to be married shall not be under twenty- one years, and the age of woman intending to be married shall not be under eighteen years.7 Thus, both these legislations have heterosexist underpinnings. In the case of Muslims, they are governed by Islamic Law itself, rather than any codified law of the Parliament. As per Islamic law, marriage is a contract, and the purpose of marriage is to legalise sexual relations between a man and a woman, for the procreation of children (however, this is not a universal view, with other competing views existing about homosexuality in Islam).8 The Special Marriage Act, 1954, allows for marriages between individuals from different religions and castes. While no separate definition of marriage is given, the Act also has heterosexist underpinnings, such as the definition of a ‘prohibited relationship’ which only considers a relationship between a man and a woman within certain degrees of familial relations. Thus, India does not have any legislation that legalises same sex marriages. However, Supreme Court’s landmark judgement in Navtej Singh Johar v. Union of India is a major step towards changing the perception of same sex unions in India. Common Family Law Issues for Same-Sex Couples Decriminalization of section 377 may have felt like a big leap and in many ways, it was, but we still have a long way to go before same-sex couples enjoy true legal equality in family matters. Just like any other couple, same sex-couples often wish to get married, start families, and live their lives with a healthy dose of peace and happiness. Unfortunately, certain legal issues and long-standing prejudice can stand in the way of family life for the homosexual community. Some of the common family law issues for same-sex couples include: Adopting a Child: Same-sex couples hoping to adopt have fewer options than heterosexual couples. 6 7

Hindu Marriage Act, § 5. Indian Christian Marriage Act, § 60.

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lawctopus.com/academike/same-sex-marriages-in-india/.

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Custody of Biological Children: Many same-sex couples choose to have a child by one spouse to become parents. The biological parent is automatically granted full parental rights. However, the non-biological parent might not be granted parental rights, even if his or her name is also on the birth certificate. Estate Planning: Same-sex couples may face issues with protecting one partner after the death of the other without a properly established estate plan. While legally married couples (same-sex or not) have an easier time retaining their rights as a spouse, same-sex couples (especially if not legally married) should definitely create an estate plan. WHY SUPPORT SAME SEX MARRIAGE Denying lesbian and gay couples the right to wed not only deprives them of the social and spiritual significance of marriage; it has serious, often tragic, practical consequences. Since they cannot marry, the partners of lesbians and gay men are not next of kin in times of crisis; they are not consulted on crucial medical decisions; they are not given leave to care for each other; they are not each other's legal heirs, if, like most Americans, they do not have wills. Marital status is often the basis on which employers extend health insurance, pension and other benefits. I believes that since we have attached such enormous social consequences to marriage, it violates equal protection of the law to deny lesbian and gay couples the right to wed. MY OPINION Marriage is a union of two souls, along with legal recognition. When a person chooses his or her life partner, and enters into the sacred institution of marriage, he or she begins a new chapter in his or her life. It is a journey, wherein two individuals share their lives, joys, sorrows, success and failures. The relationship is based on trust and understanding, love and care for each other, and it is a journey of a lifetime. Sexual intimacy is an integral part of a marriage, and a marriage cannot survive without it. Every person has the right to live their life the way want, and decide what gives them happiness, and what does not. Article 21 of the Constitution of India entitles every citizen of with the right to life and personal liberty. This right also includes the right to privacy and dignity. Choosing one’s life partner is a private subject, and it is a choice that an adult is entitled to make for himself. What is the problem then, if a man wants to marry another man, or a woman finds her soul mate in another woman? Many people consider homosexuality a crime because of religious and moral reasons. As a member of the society, man is raised with certain traditional notions of life and the way of living. Even though it is not present as a written commandment, a majority of the society thrives upon the notion that homosexual relations are wrong. No wonder in India, this is still a jaw dropping question to at least 50% of the population. Many people take the pretext of religion to call same sex relationships as immoral. As homosexual relationships have been 5

widely questioned by many religious leaders and associations, the followers may interpret gay marriage/ relation as a sin. However, no religion teaches you to hate someone because he is different from you, or publicly humiliate and discriminate another person. Every religion teaches that love is the greatest of all emotions. It is an expression of divinity, and the purest feeling. So how can a man loving another man commit a sin? The most disturbing thing is that homosexuals face immense humiliation and discrimination by the society, without any fault of theirs. It is not their fault that they were born that way. They are ostracised from the community, once their identity was revealed. This forces many such couples to hide their sexual orientations, causing frustration, dissatisfaction and selfhatred among many. A satisfactory personal life is as much a right of gay couples as others. In 2010, a gay professor of Aligarh Muslim University died mysteriously after facing discrimination from many quarters. His death shows the trauma homosexuals face in our society, and the stigma attached with being gay. But why is being a homosexual wrong? It is someone’s sexual orientation that is strictly one’s private life, and hence should not affect other areas of one’s life. We need to understand that gays or lesbians are not aliens instead they are one among us only having different emotional & sexual needs. I firmly believe that same sex marriages should be given a legal status in India. Homosexuals often feel like an outcast in the society. The best way they can integrate completely into the society would be by legalising their relationships. That is, marriage will help eliminate the stigma attached with being a homosexual. By giving them a married couple status, not only do they get social acceptance, but also the benefits a married couple enjoys in India: social security, property inheritance, right of raising a child, health care facilities, etc. Forcing them to marry out of their choice and against their sexual inclination not only disturbs their life but also destroys the life of their partner. The Supreme Court’s judgement has opened new gates, and it will hopefully prove to open many more gates in the future. This judgement is the light in the dark tunnel that will hopefully see a new marriage law in the country that caters to the need of all. Change is the law of nature, and law itself cannot remain stagnant. This is the time that we as conscious citizens of India open our eyes and see homosexual relationships, not through the eyes of morality and religion, but from the point of view of humanity.

REFRENCES  

aifs.gov.au/cfca/bibliography/same-sex-couples-and-family-law delhihighcourt.nic.in/library/articles/legal%20education/Homosexuality%20in%20Ind ia%20-%20The%20invisible%20conflict.pdf 6

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hg.org/legal-articles/same-sex-marriage-effects-on-family-law-39581 allresearchjournal.com/archives/2016/vol2issue6/PartG/2-4-128-110.pdf timesofindia.indiatimes.com/india/full-text-supreme-court-judgement-on-section377/articleshow/65708101.cms indianexpress.com/article/india/section-377-to-be-revisited-timeline-of-the-case5016095/ lawctopus.com/academike/same-sex-marriages-in-india/

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