A recent SC order observed that atypical families were as deserving of both legal protection and benefits of social welfare legislation as traditional families.
The conformation to the heteronormativity of the term ‘family’ leaves out a section of our population from enjoying various facets of life. Certain laws in India are non-accommodative of the emerging modern families.
The NALSA case judgement led to the recognition of transgender people as the “third gender” by the Supreme Court of India, affirming that the fundamental rights granted under the Constitution of India will be equally applicable to them, and gave them the right to self-identification of their gender as male, female or third gender.
In a recent Supreme Court order, a bench comprising Justice D Y Chandrachud and Justice A S Bopanna observed that atypical families were as deserving of both legal protection and the benefits of social welfare legislation as traditional families. Structural as well as attitudinal changes are essential for the progress of the family system. Equality is not achieved with the decriminalisation of homosexuality alone but must extend to all spheres of life including the home, the workplace, and public places. Till today, the LGBTQ+ community remains closed off to civil rights.
Same Sex Marriages
The Supreme Court of India has decriminalised homosexuality by partially striking down section 377 of the IPC. Same sex couples now have the legal right to cohabit and conduct their personal affairs without any fear of persecution but the law does not permit same sex marriages in India yet.
Denial of basic legal right to marry based on sexual orientation is objectionable and unconstitutional, violating the constitutional rights of right to equality and liberty. LGBTQ+ people do not get legal and social recognition as well as the state benefits that married people enjoy.
In India, adoption is governed by both secular as well as personal laws. For Hindus, there is Hindu Adoption and Maintenance Act, 1956 (HAMA), and for other religions, there is Juvenile Justice Care and Protection of Children
Act, 2015. The latter Act is secular and allows adoption regardless of the religion of the person.
Adoption laws discriminate against the LGBTQ+ couple. According to regulation 5(3) of the Adoption Regulation Act, 2017 the words “‘husband” and “wife” are used and does not recognise the right to adoption in case of same sex couples. There is a different set of adoption rules applied in case of men and women and thus the applicability of such laws with regard to trans-couples will lead to ambiguity. There is no clarity about how the adoption laws shall operate if a person undergoes sex change. Same sex couples are not allowed to adopt a child and there are no laws for the same.
The new surrogacy bill passed in Parliament prohibits single people and LGBTQ+ to have their own children through surrogacy. This new bill reiterates the notions of the “archaic family system” which is not in sync with new modern families. The essentials of the bill are so stringent that even a heterosexual couple cannot fulfil the requisite conditions.
Hindus are governed by the Hindu Succession Act, 1956, while Muslims and Parsis have their own customary laws and then there is an Indian Succession Act, 1925 which applies to all Indians who are married under the Special Marriage Act, 1954. The gender is irrelevant when it comes to inheritance, the inheritance happens based on nearness but then inheritance laws are restricted only to the heterosexual marriages. So, to apply the principles of inheritance to LGBTQ+ community it is essential to recognise the concept of same sex marriage.
There have been constant demands about the legal recognition of Hijra families especially after the NALSA judgement. However, the law continues to undermine the legal existence of such families firstly in the subsequent versions of the Private Member Bills in 2014 and then after the passing of the Transgender Persons (Protection of Rights) Act, 2019. The language of laws should be made completely gender neutral so that even transgender people or the person who undergoes sex change shall face no discrimination in inheritance.
At present, the Maternity Benefit Act of 1961 provides maternity leaves and benefits only to the cisgender women who give birth, adopt, or rely on surrogacy to have a child. Essentially speaking, there are two implications of this law.
Firstly, it reiterates the same archaic ideas and notions that it is the sole responsibility of the mother to take care of and nurture the child while the father can be waived of this duty.
Secondly, it does not take into cognisance the fact that there can be a possibility of alternative families such as the LGBTQIA+ families.
Therefore, it is essential that the language of this law must be gender-neutral so that even LGBT+ families can also have access to parental benefits and further, it can also serve as a progressive step in the direction to eliminate gender biases reinforced by the maternity benefit legislation.
Indian society is still very conservative when it comes to marriage. Indians are still not able to accept inter-caste marriages, therefore, accepting same sex marriage is still too farfetched but this cannot be a valid justification to deny the whole LGBTQ+ community the right to marry.
The provisions which are confined to the gender binary exist not only in the above discussed laws but extend across a range of other Employment and Labour laws as well.
Reform for LGBTQ+ inclusion cannot be complete without a law recognising the concept of “families of choice”. Family laws remain exclusionary because they do not account for gender beyond the binary and the many diverse forms of relationships that exist in a society, which may or not be based on conjugality. Some of the restrictions can now be potentially challenged under the robust framework of equality and non-discrimination that has been recognised.
(The writer is an Advocate, Bombay High Court)