Same-sex marriages and challenges with LGBTQ family law

Abstract

Lesbian, gay, bisexual, transgender, queer, also known as the LGBTQ community are slowly realizing the importance of their rights and are constantly fighting for it. This fight has increased considerably in the 21st century, especially in India. The reason of it is that now the people are more educated and aware about their rights. This has led to many fruitful results in the form of increase in the availability of the rights to the LGBTQ community. Even in India, the situation regarding the LGBTQ family rights is improving. However, this fight for rights does not seem to be ending any soon as we still have lesser LGBTQ rights compared to the first world country. Moreover, there is a still a social stigma prevalent in our society regarding the LGBTQ community which does not allow them to come out and accept themselves. This leads to various problems in the LGBTQ families. Though Indian government has allowed lesbians and gays to live together and homosexuality is no longer considered a crime, however same-sex marriages are still prohibited in India .

Keywords

same sex marriages , situation in India,LGBTQ individuals, child adoption, lavender marriages, family law

Introduction:

 the liberalization of LGBTQ community has been gaining more and more popularity, and we have seen tremendous progress in it, especially in the 21st century. From the pride parades to the open discussions on various social media platforms, we have seen it all. These initiatives have played an important role in being an outlet of the voice of the people of the LGBTQ community and now the voices of the Indian queer identities are more acceptable than ever.

However, all these things can be seen more in the urban areas as compared to the rural ones. Rural people have their ways of dealing with the homosexuality and the LGBT individuals.

From the secret honor killings to the corrective rapes prescribed for lesbian women, there are many horrifying techniques used by the rural people while dealing with queer individuals which suppresses their voices and gives them trauma.

according to vyjyanti vasanta mogli, a transwoman LGBT activist and a public policy scholar at the Tata institute of the social science have revealed about the abuse and mistreatment of transpeople that take place at school and workplaces and has revealed that transmen and lesbian women are considered to be at the bottom most layer of the hierarchy in the rural areas.

Still, the progress when it comes to the LGBTQ activism, the progress we have seen in India is truly remarkable.

from the removal of homosexuality from the category of crimes described under section 377 of the IPC to the articles 15 of the constitution acting as a guardian of the right of the LGBTQ community.

However, when it comes to the same sex marriages , the Indian constitution and the supreme court are still apprehensive about it.

This research paper focuses on revealing about the situation regarding the same-sex marriages and the issues regarding the LGBTQ families.

Research methodology : 

this paper is based on doctrinal type of research methodology. Various types of text material such as websites , newspapers as well as journals have been used for conducting this research.  

Review of literature:

The review of the literature is a comprehensive one . It delves meticulously into the challenges faced by the same sex couples and the LGBTQ community. It tells about the on going fights for their rights as well as the stigma they face from the society. According to various research papers, though the same sex relationships have been legalized , the idea of legalization of same sex marriages still seems a far fetched one . Moreover, not only the queer individuals have to fight for the legalization of same sex marriages , they still have to fight against the society to stop the hate crimes against them. 

same-sex marriages: 

After reviewing the available literature,  the author  can say that while the Hindu marriage act 1955, the Muslim Personal Law (shariat) Application act, 1937 for Muslims and the secular special marriage act, 1954 give many benefits to the heterosexual unions, none of them says anything about the same-sex marriages. While many same-sex couples have married since the 1980s according to the Hindu customs, none of them could get registered. Therefore, they are not entitled to the same rights and the security as their heterosexual counterparts. 

since the 2010s, several states like Punjab, Uttarakhand, Himachal Pradesh, Kerala, and Odisha have declared that same-sex couples can live together and their live-in relationship wouldn’t be considered unlawful.

Now the same-sex couples have been given the right to live together, but they are merely considered as a cohabiting couple.

Moreover , the author also discovered that in 2017, a draft of uniform civil code to legalize same-sex marriages was proposed by a group of citizens. Under this code, marriage was described as “a union between a man with a woman, a man with another man, a woman with another woman, a transgender with another transgender or a transgender with another man or a woman”. Similarly, it defined partnership as a man living with a woman, a man living with another man, a woman living with another woman, a transgender living with another transgender, a transgender living with a man or with a woman. The draft also stated that “all the married and couples living in a partnership are entitled to adopt children. Their gender and sexual orientation should not be a bar to children adoption.” . This code provided a repeal for all the marriage and succession related laws (Hindu marriage act, Hindu succession act, Muslim personal (shariat) application act, the Indian Christian marriage act, etc.) this draft was submitted to the law commission of India for consideration

However, the application of this uniform civil code had been a topic of debate for many years. But in September 2023, media reported that the law commission has excluded this draft.

In April 2022, MP Supriya Sule from the nationalist congress party tried to introduce a bill in the Lok sabha which prescribed a marriageable age to the gay and lesbian couples as 21 and 18 years respectively through the special marriages act. However, no action was taken on the bill.

In April 2023, a bench of 5 judges started hearing the petitions. In May 2023, the solicitor general told the supreme court bench that a committee would be formed to conduct the study. On October 17th, 2023, the supreme court refused to grant legal recognition to the same-sex marriages, leaving it to the parliament to formulate necessary legislation. 

It can be said that there have been countless efforts made by the queer individuals in order to legalize same sex marriages 

Lavender marriages : 

according to an article named “what is Lavender marriage? And why is it still popular in India” , written by Devrupa Rakshit, Homosexual couples in India face a huge social stigma from their families as well as from the society and they have to go to a large extent to hide their sexual orientation. One such thing they do is called “lavender marriages”

“lavender marriages” is a term that dates from the early 20th century, and it is a concept where two homosexual individuals enter in a heterosexual marriage. i.e., either both of the individuals are homosexual or at least one of them is homosexual.

While lavender marriage is a last resort of a queer individual to fight against the social stigma, it is slowly becoming quite common in India especially since the past few years.

Senior advocate Saurabh kirpal placed his argument before the court saying” if non-heterosexual [people] are prevented from marrying, what happens? In our society, lavender marriages would occur. There is nothing more detrimental than a gay man marrying, and cheating a lady that way.”

It can be said that these type of marriages are doing more harm than good to our societies, as most of these marriage end up with failure, leading to divorce, separation, abuse, and domestic violence among the married individuals, effecting the mental and physical health of either one or both of the partners.

Can homosexual couples adopt children?

 According to a research paper, titled “can homosexual couples adopt children?” , written by Arghya,  it can be said that Single individuals who belong to the LGBTQ community in India can adopt the children in the same way as the heterosexual couples and individuals do. They must follow certain criteria such as being between the ages of 25 to 50, and mentally and physically stable. However, They must follow all the formalities and procedures. In the year 2023, The CJI held that the regulation 5(3) of the CARA is violative of the article 15 of the constitution which says that the constitution forbids the discrimination based on religion, race, caste, gender, or place of birth. However, justice bhatt disagreed with the CJI on this matter saying that the regulations of the CARA can’t be held unconstitutional. Justice Hima Kohli and justice PS Narasimha also agreed with Justice bhatt and therefore, with a majority of 3:2, it was held that the regulation 5(3) of the CARA is not unconstitutional and therefore, homosexual couples are still not allowed to adopt children after this judgement.

This is yet another setback against the gender equality in India. It is the need of the hour to legalize the adoption by same sex couples in order to ensure equality promised to us by our constitution. 

Plight of the people of LGBTQ community in India

the queer community forms the 8% part of our country’s population. While the judgement by the supreme court that was given on 17th October 2023 refused to accept legalize the same – sex marriages, it did contribute towards silencing the hostile voices of the society towards the queer individuals. While the justice Sanjay Kishan Kaushal accepted the heterosexual marriages as the “integral part of the Indian society” , the CJI , D.Y. Chandrachud quoted that “it is not the queerness which is of the foreign origin but the many shades of prejudice in India which are the remnants of a colonial past” . He suggested that any practice that takes place in India can be termed as Indian.

This suggests that the phenomenon of homosexuality and queerness is not only the part of the urban society but also of the rural sections as well. The people of the LGBTQ community have existed since the time immemorial, both in the urban and the rural areas. Various evidences found by the author in order to prove this fact are: 

Evidences from ancient and medieval India 

  1. in Hinduism , the existence of homosexuality has been depicted through various ancient scriptures and artworks. One of its earliest existence can be traced to the time when Buddha founded his philosophies. Thus, the homosexuality has been viewed very positively in the Buddhism. Kama Sutra is an ancient text that tells about the various types of kama or desires. It’s author, Vatsyayana, has described homosexual practices at various places and has also told about different gender ‘types’.
  2. It also tells about the existence of two different types of transgenders (tritiya-prakriti), namely the masculine and feminine type of transgenders, which were simply labelled as eunuchs during the Victorian era.
  3. The arthashastra also described about the various types of sexual practices, which, whether practiced by a man or a woman, were to be punished by a minor fine. Homosexuality was one of such practices as well.
  4.  The review also tells that various types of erotic artwork from the medieval India tells about the existence of LGBTQ community in the medieval India, including the ones at khajurao and the ones at the sun temple at konark.
  5. the existence of LGBTQ community can be traced to the Mughal period when babur was the first Mughal emperor who mentioned about his love towards his male lover “baburi”. Even Mubarak, who was the son of Alauddin khilji was said to be in a romantic relationship with one of his nobleman.
  6. in the 1560s, homosexuality was prohibited under the Portuguese rule.
  7. one of the major setbacks that the LGBTQ communities faced was after the arrival of the Britishers where they criminalized all the sexual activities against the order of the nature under section 377 of the Indian penal code.

Current situation

  1. The literature covers the fact that in the year 1981, the first All-India Hijra conference was held in the city of Agra and about 50,000 people of the transgender community joined it
  2. In the 21st century, the acceptance of the society towards the LGBTQ community has been slowly increasing. Various laws had been formulated in the past few decades that have conferred various rights to the queer individuals, such as the voting rights that were granted to the hijras in 1994, the freedom of expression of the sexual orientation given to the LGBTQ community given on 24th August 2017, and finally the striking down the part of the section 377 of IPC which criminalized the consensual homosexual activities in the year which resulted due to a PIL which was filed by the Naz foundation in the year 2001. This was regarded as a huge milestone in the struggle for the rights of the LGBTQ community
  3. Despite all this, the author highlights the current plight of the LGBTQ community as there is a lot of improvement that is yet to be done regarding the situation of the LGBTQ rights in order to remove the taboos regarding them from the minds of the people, including their family members who do not accept the queer members of the family that easily. Individuals who identify themselves as a part of the LGBTQIA community are subjected to a lot of discrimination and abuse, both from their families and from the society.
  4. The situations are a lot worse in the rural areas because of the lack of education and awareness of the village people.
  5. Children and adolescents fear to come out and identify themselves as a member of the queer community, even in front of their families because they fear the abuse that can come from their family members. This abuse can be both mental and physical. One such type of abuse that they might face is in the form of “corrective rapes” which are also known as “curative rapes”. These are the rapes which are planned by the family members for their children. The family members get their children raped because of their sexual orientation, in order to “straighten them” and make them behave like heterosexual individuals. These are more common in countries like India, Nigeria, Kenya, Thailand, Peru, Nigeria, etc.
  6.  According to the literature in India, corrective rapes are more common in the rural areas, specially in the case of lesbian women. In India, these “corrective rape therapies” are performed to protect the family name and to avoid discrimination from the religious communities. According to a report from the year 2015 by the crisis intervention team of the LGBT collective in Telangana, there have been 15 instances of the corrective rapes reported from all over the country in the span of five years. However, it should also be noted that in our country, 90% of the sex crimes are not even reported.
  7. According to another research paper , titled “Honor killing of Homosexuals” , written by Siddhesh patel, another hate crime towards the queer individuals that is the honor killing. Honor killing is a type of homicide of an individual (in this case, the queer individuals) by their own family members in order to protect the family reputation from getting spoiled . These types of honor killings take place more in the rural areas and are conducted in the secrecy . Other than honor killings and corrective rapes, instances of queer individuals getting beaten up brutally and tortured by the family members and peers at schools and workplaces are not very uncommon. These instances lead to a trauma in the hearts of the queer individuals and can lead them to a point that they might even commit suicides.
  8. These types of crimes violate article 14, 15, 19 and 21 that are guaranteed to an individual by the Indian constitution.
  9. In urban areas, cyberbullying of the queer individuals are more common. It is one of the common reason of suicides of queer individuals.  
  10. Moreover, after reading a newspaper article named “LGBTQIA and their situation in india”,  written by Siddhesh Patel , the author can say that many LGBTQIA kids might become homeless because they may either get kicked out of their homes by their family member, or they might run away to escape from abusive relationships. In such condition, these homeless children might not even get proper education and emotional support from their family members and since they do not have any means to support themselves financially, they might indulge in criminal activities such theft and burglary or even in prostitution. This goes against the formulation of a civilized and peaceful society, moreover, employment opportunities are lesser for LGBTQIA individuals as it is challenging for them to provide proper documents relating to their gender identification, including in their school records. Some occupations also have gender limits, so this makes it difficult for the queer people to attain such positions.

Method

This research paper has been written to tell about the need to legalize same-sex marriages and bring changes in the current laws to protect the people of the LGBTQ community. The author has written this research paper after reading and referring to various text material such as various law journals, newspapers, blogs, and articles. Majority of the data is taken from the Legal Service India, which is a law portal that provides access to free online legal material not only to law students, but also to the law practitioners , research scholars, professors, and other business individuals.

Other than that, various websites and newspapers like times of india have also provided invaluable information 

Suggestion 

After reading various legal texts, the author can give the following suggestion:

1. Need to legalize same-sex marriages: after a massive support not only from the queer community, but from the public in general, it is time for the supreme court to realize the need to legalize the same sex marriages in India. As the right to love should also come with the right to marry, legalizing the same-sex relationships in India means that same-sex marriages should be legalized as well.

2. need to formulate proper family laws for the LGBTQ community: not only the same sex marriages should be legalized in India, proper amendments should be made in the current family laws to solve the family issues such as adoption, maintenance, and inheritance in the cases of same-sex relationships 

3. need to formulate proper protection laws: apart from the amendments in the family laws and the legalization of same-sex marriages in India,, proper protection laws should also be made to protect the queer people from crimes such as honor killings and corrective rapes. Moreover, proper cyber protection laws must be made and implemented to keep a check on the cyberbullying in order to protect not only the people of the LGBTQ community but also the general public. 

Conclusion

From the various reports and statistics , it can be realized that the need of the hour is to formulate proper laws for the protection of LGBTQIA individuals against the heinous crimes like the corrective rapes and honor killings. Moreover it is also necessary to formulate and implement proper laws for the protection against the cyberbullying that the queer individuals face on various online platforms. While the idea of equality for the queer individuals still seems a far-fetched one in India , what the people of the LGBTQIA community yearns the most is the equal treatment rather than a special treatment.

Moreover the failure of the legalization of the same sex marriages by the supreme court has been considered as a massive setback in the liberalization of the LGBTQIA community. But that doesn’t mean that the battle has ended there is still some hope left. The support and acceptance towards the same sex unions is increasing day-by- day. Therefore it is imperative for the supreme court and the government to legalize same-sex marriages , allow the same sex couples to adopt children and formulate proper family protection laws since everyone equal rights to a happy and secured married life.

Name – Amrita Gaur

College- Government law college, Kota