Family Laws Contemporary Issues and Challenges for LGBT Community

Family Laws Contemporary Issues and Challenges for LGBT Community

The researcher is the practicing advocate at the Supreme Court of India, and deeply concerned with the state of LGBT community rights in our country. Having studied and practiced law before the apex court of India, the researcher intends to bring positive reform through his research and writing. In this direction, he decided to critically analyze the Family Laws, Rights and Jurisprudence from the LGBT community standpoint. This is one such study which critically analyzes the letter of the law and the spirit of the law from the LGBT community rights standpoint.

The draconian law contained in Section 377 of Indian Penal Code deprived Lesbian, Gay, Bi-sexual, Transgender and Intersex (LGBTI) people of India of several fundamental rights, in particular, of the right to life or personal liberty (Article 21), the right to equality (Article 14), the right to non-discrimination (Article 15) and the right to freedom of speech and expression (Article 19). The Supreme Court of India in 2018 repealed Section 377. While delivering the judgement, Justice Indu Malhotra of the same bench said, “History owes an apology to the members of the LGBT community and their families for the delay in providing redressal for the “ignominy” and “ostracism” they have faced through the centuries.”

Having said all these, does it mean that those rights which were clipped off owing to Section 377 are now restored for the LGBT community? There are no official demographics for the LGBT population in India, but the government of India had submitted figures to the Supreme Court of India in 2012, according to which, there were about 25 lakh LGBT people (out of which transgender population is approx. 4.88 lakh) recorded in India. These figures are only based on those individuals who have self-declared to the Ministry of Health. There may be much higher statistics for individuals who have concealed their identity, since a number of LGBT Indians are living in the closet due to fear of discrimination. And this fear among 25 lakhs plus community members calls for creating safe, accepting and inclusive families, society, workplace and our larger ecosystem by reforming our laws which will provide them equal rights and do not discriminate them based on their sexual orientation or identity.

This study is an attempt to critically analyze the letter and the spirit of the law enshrined in the Family Laws, Rights and Jurisprudence from the LGBT community standpoint and how does the future hold for them in India. Family Laws comprises of the Hindu Marriage Act, 1955, Special Marriage Act, 1954, Parsi Marriage And Divorce Act, 1936, Hindu Adoption and Maintenance Act, 1956, Indian Divorce Act,1869, the Surrogacy (Regulation) Bill, 2020, Hindu Succession Act, 1956, Life Insurance Act,1956, Transgender Persons (Protection of Rights) Act, 2019. It is imperative to do such study because-

  • Our Family Laws and Rights codify mainly the law relating to marriages; and a country wherein the same-sex marriages are not legally recognized directly deprives LGBTI community and same sex partner from accessing these Family Laws.
  • Most of our laws are made keeping heteronormative structures at the central stage which excludes sexual minority rights.

The researcher intends to provide fair and sound arguments which conclude about the reforms in the Family Laws, Rights and upholding the Legal Jurisprudence and the Spirit of the Law.

Moreover, there is no specific law on the subject of live-in relationships nor is it recognized by the Hindu Marriage Act, 1955 or under any other family laws for the time being in force in India. Though law is still unclear about the status of such relationship yet few rights have been granted by interpreting and amending the existing legislations so that misuse of such relationships can be prevented by the partners. This research intends to find out the repercussions upon the live–in couples due to the absence of specific law granting legal status to such couples and what benefits could be extended to such live-in couples if immediate legal status is granted to them.

The complete study will soon be published.

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    Mr. Umang Shankar

    Advocate on Record, Supreme Court of India

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