SHAPING MARRIAGE NORMS: LESSONS FROM SUPRIYA CHAKRABORTY AND ANOTHER V. UNION OF INDIA FOR THE LGBTQ+ COMMUNITY

ABSTRACT

This research paper embarks on an analysis of the case, Supriya Chakraborty and Another v. Union of India[1], delving into its profound influence on the landscape of marriage norms and its resonating implications for the LGBTQ+ community. The study is framed within a comprehensive exploration that traverses legal doctrines, comparative jurisprudence, scholarly discourses, and the societal impact of this pivotal case.

At its core, this research seeks to unravel the sophisticated impact of the Supriya Chakraborty case[2] on the very institution of marriage norms established by various customs and governed by various acts and statutes, like the Hindu Marriage Act and Special Marriage Act. It deliberates the case’s legal implications and it’s potential to redefine traditional standards, particularly within the context of the LGBTQ+ community and its quest for recognition and equal rights in the institution of marriage. By examining and comparing the case against the background of prevailing legal precedents and global legislative frameworks. The research aims to elucidate the far-reaching ramifications of this legal battle not only within India but also in the broader global discourse on marriage equality.

KEYWORDS: LGBTQ+ Rights, Fundamental Rights, gender Identity, Article 14, right to marry, Special Marriage Act 1954

INTRODUCTION

The case of Supriya Chakraborty and Another v. Union of India[3] marks a watershed moment in the legal landscape of India. Beyond its immediate implications in the realm of reproductive rights and individual autonomy. This case reshaped broader societal narratives and legal paradigms, particularly concerning marriage norms and the rights of the LGBTQ+ community. Its significance reverberated far beyond the courtroom, sparking a cultural and legal shift that has begun to redefine the conventional understanding of marriage.

RESEARCH METHODOLOGY

This paper is based on descriptive and analytical research and is based on the primary sources such as Supreme Court Judgments, All India Reporters as well as some secondary resources as like that of journals and websites.

Review of Literature

The lawful development of marriage standards for the LGBTQ+ people group in India has been molded by a progression of milestone decisions and worldwide guidelines. Starting with the noteworthy NALSA v. Association of India (2014) judgment perceiving the privileges of transsexual people, the stage was set for more extensive conversations. The Navtej Singh Johar v. Association of India (2018) choice decriminalized consensual same-sex relations, establishing the groundwork for LGBTQ+ privileges. Universally, nations like the US, with the Obergefell v. Hodges (2015) administering, and others in Europe and Canada, gave lawful systems perceiving LGBTQ+ associations. The Yogyakarta Standards highlighted the global basic liberties principles, underscoring the option to wed for all people. Be that as it may, challenges endure, prominently the shortfall of explicit regulation perceiving same-sex relationships in India post the striking down of section 377. Cultural mentalities and segregation further muddle the full activity of LGBTQ+ marriage freedoms, demonstrating the requirement for proceeded with lawful changes and promotion to adjust India’s legitimate system to sacred standards and global guidelines.

In Concerning Sex: Arranging Hijra Personality in South India,[4] Gayatri Reddy reports the various signs of connection in hijra networks, including the master chela (or educator pupil) relationship, the mother-girl relationship, and the ‘jodi’ (or bond) with a spouse. She depicts the number of hijras go into associations with men, who are alluded to as their ‘pantis.’ These associations length over numerous months or numerous many years, contingent upon the couple being referred to. Numerous men in such associations have made their natal families mindful about their relationship with their accomplice, and now and again, the hijras would at times meet their accomplice’s natal family. They here and there alluded to their relationship as one of ‘marriage.’ Men additionally attacked their accomplices and showed other fierce inclinations. Some hijras kept in touch with their organic family, most quite the mother. Albeit numerous hijras were in heartfelt, durable associations with men or in contact with their natal family, they considered other hijras as comprising their family rather than their ‘pantis’ or their natural families.82 In numerous networks, hijras are usually welcome to promising occasions (like the introduction of a youngster) to favor the family being referred to

BACKGROUND OF THE LGBTQ+ COMMUNITY

Before the Supriya Chakraborty case, India’s lawful structure with respect with marriage reflected cultural shows that prevalently complied with a conventional, heteronormative perspective on marriage. Section 377 of the Indian Penal Code condemned consensual gay demonstrations, adding a huge hindrance to perceiving same-sex connections. This lawful environment sustained separation and rejection against LGBTQ+ people in the domain of marriage and personal connections.

Wherefore, the Supreme Court came across different set of challenges as that of the question raised in the case of in the Naz Foundation v. Government of NCTD[5] which was reversed in a two-Judge Bench of Supreme Court in Suresh Kumar Koushal v. Naz Foundation[6] that Section 377 of the IPC to exclude consensual homosexual sexual activity between adults, in the case of Navtej Sigh Johar[7] in which it was held the Section 377 as unconstitutional to the extent that it criminalizes consensual sexual activities by the LGBTQ community.

Every individual of the administrations given by the State including public washrooms, security checking’s and ticket counters at rail stations and transport stops are isolated in light of a severe orientation twofold genders only, that is, male and female. Transwomen have often, related encounters of being approached to move to the men’s line in security check points[8]. Despite the fact that they are ladies and relate to the female orientation, they are compelled to acknowledge an outsider’s evaluation of their orientation as being male. Similarly as a cisgender [9]lady might feel seriously awkward at utilizing offices implied for men, transsexual ladies also may feel entirely awkward. Over the long run, disregarding the gender an individual can harmfully affect their emotional wellness and adversely influence their capacity to work on the planet.

Spaces for schooling and work are additionally not an exception where orientation personality and sexual direction might be communicated devoid of any prejudicial perspectives. The individuals from the eccentric local area might be compelled to stop their schooling or their work in the event that they face abuse in these spaces. This would imply that they don’t have equivalent open door.

Frequently, instruments of the State which are entrusted with safeguarding basic liberties, sustain savagery. Police and jail authorities show viciousness towards the strange local area. A research led by the National Institute of Epidemiology[10] included around 60,000 transsexual members, uncovered that the policing are the biggest culprits of savagery against the transgender community.[11]

This case, therefore, serves as a catalyst in the ongoing struggle for the recognition of diverse forms of partnerships and the equal treatment of all individuals in the realm of marriage. It initiated a discourse that seeks to challenge discriminatory practices and promote a more inclusive, equitable society. The Supriya Chakraborty case has thus become a cornerstone in the evolution of legal and societal norms, offering pivotal lessons and insights for the LGBTQ+ community in their quest for equal rights within the institution of marriage.

TRANSGENDERS RECOGNITION

In this case statements made were, that the option to wed an individual applies to transsexual people. Whereas the government appears to have a blended reaction to this case. On one hand, it declares that marriage should just be between biological men and women. Then again, the statement made is that the issues connecting with transsexual people emerging out of The Transgender Persons (Protection of Rights) Act, 2019 stand on an alternate balance and can be addressed without reference to the Special Marriage Act.

Therefore in order to understand the overlay of these terms the general understanding of the term sex can be understood as different from gender. The Yogyakarta Standards portray one’s orientation way of life as:

“every individual’s profoundly felt interior and individual experience of orientation, which could conceivably compare with the sex allocated upon entering the world, including the individual feeling of the body (which might include, if uninhibitedly picked, adjustment of substantial appearance or capability by clinical, careful or different means) and different articulations of orientation, including dress, discourse and mannerisms.”[12]

The orientation of an individual may not compare to the sex they were relegated upon entering the world. A transsexual individual is one whose orientation character doesn’t adjust with their sex. Transsexual individuals might decide to go through hormonal treatment or medical procedure (normally known as orientation attesting a medical procedure or sex reassignment medical procedure) to modify their bodies to cause them to adjust to their orientation. As verified in going before portions of this judgment, the term ‘transsexual’ doesn’t completely catch the rich variety in orientation characters in India. By and large and socio-socially, Indian persons[13] with a gender queer character go by various names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis. People who are referred to by these names might recognize as male, female, or the ‘third orientation.’ Intersex people are not equivalent to transsexual people. They have abnormal conceptive qualities. Intersex individuals might distinguish as male, female, or transsexual.

Parliament too enacted the Transgender Persons Act in 2019 to accommodate the freedoms of transsexual people and their government assistance. This rule restricts victimization transsexual persons[14], accommodates a framework by which their personality might be recognized[15], recommends that the government will take government assistance measures[16], perceives the right of residence [17]and accommodates the commitments of different gatherings as for their right to schooling, government backed retirement, and health[18]. It likewise makes a National Council for Transsexual Persons[19].

The arguments and definitions in the Supriya Chakraborty forwarded the definition as a wide ranged and nondiscriminatory as:

“… an individual whose orientation doesn’t coordinate with the orientation doled out to that individual upon entering the world and incorporates trans-man or trans-lady (whether such individual has gone through Sex Reassignment Medical procedure or chemical treatment or laser treatment or such other treatment), individual with intersex varieties, genderqueer and individual having such socio-social ways of life as kinner, hijra, aravani and jogta.”[20]

From the definition, obviously the institution applies to people whose orientation doesn’t coordinate with that doled out to them upon entering the world, which incorporates transgender men and women, intersex persons, other genderqueer persons, persons with socio-cultural identities such as hijras.

THE IMPORTANCE OF MARRIAGE AS A SOCIO-LEGAL INSTITUTION IN LGBTQ+ PERSPECTIVE AND ITS FUNDAMENTAL GUARENTEE

The institution of marriage is per-se a private affair between two heterosexual couples, however the petitioners in this case seek intervention of the state by recognition of their right to marry. But the regulation of the state in the marriages can be seen as first and foremost, it recommends conditions as for who can go into a legitimate marriage; furthermore, manages the conjugal relationship during its sustenance; and thirdly, controls the repercussions of the breakdown of a relationship of marriage, that is to say divorce.

The State endorses different circumstances for the solemnization of a legitimate marriage which bury alia incorporates the states of assent, a base age necessity, and whether the gatherings are inside the levels of disallowed relationship. The law manages the direct of the gatherings to a marriage in various ways. For instance, the law punishes the spouse and his relatives on the off chance that they treat the wife remorselessly, including requests for dowry[21]. Correspondingly, the Protection of Women from Domestic Violence Act 2005 punishes people for abusive behavior at home throughout a homegrown relationship which has been characterized to incorporate marriage.

Henceforth the question arises that, what provoked the State to control individual connections? There are two noticeable reasons. Firstly, managing the sexual lead of people through marriage, and secondly for the devolution of property in view of the authenticity of the main beneficiary.

Concerning the first of the reasons, the State involved marriage as an instrument to direct sexual behavior[22]. Taking part in sexual acts beyond marriage is a ground for divorce from under private marriage laws[23] and under other statutes[24]. It is likewise pivotal to take note of that impotency and not sterility is a ground for divorce[25]Impotency is the powerlessness of a man to participate in sex. Then again, sterility is the failure of a man or a lady to multiply. By recommending impotency as a ground for proclaiming a marriage void (and not sterility), the State underscored the centrality of sexual relations in a marriage rather than reproduction.

The second justification for the State to be associated with the guideline of individual connections was to rebuild society, commenced on the protected worth of fairness. The Constitution proclaims that there will be no segregation on the grounds of religion, race, rank, and sex. How might it be a fair society in the event that from one viewpoint the Constitution proclaims that there will be no separation, and then again, between confidence and between rank connections endure the worst part of a severe society through segregation and “honor” killings or standing based murders? How just could society truly be in the event that despite the established assurances of balance of ladies in broad daylight posts and instructive foundations, they experience male centric perspectives in the confidential circle?

The State controls the institution of marriage with an effort to make a space of equivalent status to both the spouses where neither position, religion, and sex keeps any individual to retain their individual identity as well as the constitutional safeguards. The State’s guideline of marriage perceived that despite the fact that a wedded couple is a ‘unit’ for the reasons for regulations, they actually hold their singular character and are qualified for constitutional mandates.

In the current case, a sincere exertion has been made by the court to perceive whatever number privileges as would be prudent inside their jurisdictional field. Exceptional notice should be given to Justice Chandrachud for his contradicting assessment, wherein the adjudicator has endeavored to give a marriage-like status to the common association of two people under which the useful/functional part of Article 19 (1) (c), (e), (a), 21 and 15 (1) of the Indian Constitution. The opportunity to settle and the opportunity to make an association can’t completely be operationalized till the time there is ‘State and Non-State Brutality’ against people for their sexual direction and orientation character .He also acknowledges the way that marriage as an establishment, and as perceived and controlled by the state, can’t be made a basic right. In basic truth, the pertinent regulation under which this right might have been considered was the Special Marriage Act, of 1954.

The methodology of Justice Chandrachud can be summed up as ‘privileges from wrong methodology’, a methodology propounded by Allan Dershowitz[26]. It is a usually alluded approach under Relative Established Regulation. It is accepted that each right propounded depends on a past unfairness. A model could be Germany. The advanced German Constitution is supportive of principal privileges and basic freedoms driven. Germany saw a terrible past of the holocaust, and it comes as an example for them to make a more steady society in accordance with human nobility. All through his viewpoint, Jstice Chandrachud has accentuated the minimization looked by the strange gathering because of the obtuseness of the state and the non-state entertainers. Giving them equivalent status as a common association (and every one of the advantages joined to it) was a method for repaying them for the wrongs committed previously.

Be that as it may, the greater part assessment drove by Justice Ravindra Bhat (agreed by Justice Hima Kohli and a different agreeing assessment of Justice PS Narashima) didn’t support the assessment of Justice Chandrachud and was for all intents and purposes right. Realizing that the Division of Force is a piece of the Essential Construction, it isn’t reasonable, legitimately or even morally, for the Courtroom to make a foundation lined up with marriage. Justice Bhat completely stresses that a right doesn’t necessarily make a positive commitment to the degree that the Court can set some hard boundaries for it. Just reserving a privilege to common association doesn’t commit the state to make the socio-lawful foundation for working with the right. The Court certainly can’t accomplish this work, it is upon the leader consultation to focus a fitting time. Nonetheless, it is fascinating to specify that the greater part assessment agrees with the disagreeing that the ‘Right to Marriage’ can’t be unfit.

CONCLUSION

From a jurisprudential viewpoint, the judgment should be examined according to three points of view: legitimate, moral and humanistic[27]. The lawful viewpoint manages the legitimateness of the judgment, on that front this judgment is totally solid, following the standards of the Indian Constitution direct. Nonetheless, on a moral and humanistic front this judgment may be going through elegance marks. The ethical part of the judgment brings up issues in regards to the moral obligation of the Court, as in, for what reason does a Court exist?

Prof Rohit De[28] says in a vote based country, the Court assumes a significant part in being a discussion of portrayal for unheard voices. The entire idea of Legal Survey began from this moral need of an autonomous mediator, who will referee the freedoms of the person against the State. On this front, the judgment has somewhat succeeded, as currently referenced prior, essentially the judgment brought the talk with respect to eccentric gathering and their freedoms to the front in the public area, wherein it will be examined in each family of the country. However the judgment has not given the ideal outcome, yet a talk of the unheard will go quite far in making a course. As Prof. Yogesh Pratap Singh[29] says, potentially a disagreeing assessment at present will get momentum sooner rather than later and a statute for later.

On the humanistic perspective, the inquiry is regardless of whether the judgment is very much acknowledged, and when we discuss acknowledgment of judgment, we don’t allude to the mass populace of India giving their acknowledgment to the judgment. We allude to the partners of judgment (the notice of such contentions on legitimate, moral and political authenticity should be visible in the Book A majority rules government and Constitutionalism in India), the partners under this judgment will be the eccentric local area and the lawful diaspora. There are blended surveys which have come for the judgment, the majority of the individuals from strange gatherings are unsettled. In any case, it is fascinating to see that this has been depicted as a disappointment of the Court to not perceive conjugal freedoms, a few of the prime legitimate sites in their bits have thrashed the legal executive for their inability to maintain the conjugal privileges of eccentric gatherings. However, that isn’t reality, the legal executive has made a surprising showing to the degree it was lawfully conceivable. The humanistic acknowledgment of the judgment relies upon the public discernment made by the media channels, and lawful news stages, it appears they have neglected to depict the genuine picture.

By:

Siddharth Misra

Ramaiah Institute of Legal Studies,

Bangalore


[1] https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf

[2] https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf

[3] https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf

[4] Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (The University of Chicago Press 2005)

[5] Naz Foundation v. Government of NCTD (2009) 160 DLT 277

[6] Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1

[7] Navtej Sigh Johar  vs Union of India 2018 1 SCC 791

[8] e-Committee Supreme Court of India, Sensitisation Module for the Judiciary on LGBTQIA+ community, pg. 94

[9] Denoting or relating to a person whose gender identity corresponds with the sex registered for them at birth; not transgender.

[10] International Commission of Jurists, Unnatural Offences: Obstacles to Justice in India Based on Sexual Orientation and Gender Identity (ICJ, 2017)

[11] Sejal Singh and Laura E. Durso, ‘Widespread discrimination continues to shape LGBT people’s lifes in both subtle and significant ways’ (American Progress , 2 May 2017) https://www.americanprogress.org/article/widespread-discrimination-continues-shape-lgbt-peoples-lives-subtlesignificant-ways/

[12] Introduction to the Yogyakarta Principles, Yogyakarta Principles

[13] As also persons in other South Asian countries

[14] Chapter II, Section 9 of Transgender Persons Act 2019

[15] Chapter III of Transgender Persons Act 2019

[16] Chapter IV of Transgender Persons Act 2019

[17] Section 12 of Transgender Persons Act 2019

[18] Chapter VI of Transgender Persons Act 2019

[19] Chapter VII of Transgender Persons Act 2019

[20] Section 2(k), Transgender Persons Act

[21] Section 498A of Indian Penal Code, 1860

[22] Laurence Drew, Sex, ‘Procreation and the State Interest in Marriage, (2002) Columbia Law Review, Vol. 102(4)

[23] Section 13(1) of the Hindu Marriage Act, 1955

[24] Special Marriage Act, 1954

[25] Section 27(1)(ii) of the Special Marriage Act 1954

[26] Dershowitz, Alan M. “Preventive confinement: A suggested framework for constitutional analysis.” Tex. L. Rev. 51 (1972): 127

[27] Baldwin, Robert, Martin Cave, and Martin Lodge, Eds. The Oxford handbook of regulation. Oxford Handbooks, 2010

[28] De, Rohit. “The republic of writs: Litigious citizens, constitutional law and everyday life in India (1947-1964).” (2013).

[29] Singh, Yogesh Pratap. “JUDICIAL REVIEW AND PROCESS OF JUDGING.” Journal of the Indian Law Institute 60.1 (2018): 58-78.

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