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A year ago, on Sept 6, 2018, in the landmark judgment of Navtej Singh Johar & Ors v. Union of India, the Hon’ble Supreme Court of India decriminalised consensual sex between adults of same-sex by reading down Section 377 of Indian Penal Code,1860. With this judgment, heavy demand for gay marriages, inheritance and adoption may rise in the country. In order to fulfil these demands, the legislature must come into the scene which is not practically possible in the country because of the majoritarian opinion which strongly opposes it.
The Supreme Court cannot validate laws which are meant for straight persons on its own. The validation of such laws requires the intervention of the legislature. Notably, India is a country with an exhaustive legal framework which is covered under the ambit of its Constitution. This set of the legal framework consists of laws which are governed only for heterosexuals in the country. Though there are many other aspects of the judgment that has left the doors open, yet the present legal framework will have to go through a tough battle to comply with the 377 judgment.
After this judgment, the rights of the homosexuals which were confined earlier has now been turned into a restraint as the Supreme Court has simply opened a small window of sunshine over their rights in the country, however, the doors still seem to be closed. The present paper aims to address the above perception. This paper argues that the present legal framework is inconsistent to cover the rights of homosexuals.
Inconsistencies in Marriage Laws
In the current legal framework of India, the marriages are covered under the personal laws of the different religions which contemplates a heterosexual marriage i.e. a marriage between a male and female. The mention of a marriage between a person belonging to same-sex has not yet received its place in the Indian marriage laws. An example of the same is governed under the Hindu Marriage Act, 1955. As per Section 5(iii) of the said Act, which talks about the ‘Conditions for a Hindu marriage’, wherein, at the time of marriage, the bridegroom must have completed the age of twenty-one years and the bride the age of eighteen years.
The above example clearly reflects that a valid Hindu marriage can only be solemnized between a Hindu ‘bridegroom’ and Hindu ‘bride’ i.e. male and female. A marriage between two Hindus of the same gender will not be recognized as a valid marriage under the Hindu Marriage Act, 1955. The same Act also applies to Virashaiva, Lingayat, Buddhist, Jaina, Sikh or a follower of the Brahmo, Prarthna or Arya Samaj. This shows that the major portion of the Indian population, namely Hindus, still have to to wait for a valid homosexual marriage to get its place in the Indian legal system.
The position in the Muslim Law regarding same-sex marriage is the same as the Hindu Law as it too does not cover marriage between any two persons of the same sex. Muslim Law, being an uncodified law, only contemplates marriage between a heterosexual couple. One of the essential conditions of Muslim marriage relates to fixation of dower or Mehar, on the day of marriage. Dower particularly means a particular sum of money or property which the wife is entitled to get from the bridegroom, in consideration of marriage. The same essential would make the marriage void, if applied on a homosexual Muslim couple.
Till now we have discussed the intra-religious marriages. Let’s now come to the inter-religious marriages in India which are governed by the Special Marriage Act, 1954. Section 4 of the said Act that deals with ‘conditions relating to solemnization of special marriage’ states in its clause (c) that a marriage can be solemnized between two persons when at the time of marriage, the male has completed the age of twenty-one years and the female the age of eighteen years. This brings us to the notion that there exists no remedy for the homosexual couple to get married in the present legal framework of the country. Notably, On July 9, 2019, Delhi HC dismissed a PIL seeking recognition of relations between persons belonging to the LGBTQ+ community. The court observed the prayer of the petitioner to be legislative in nature.
Inheritance – A Homosexual Void
The Navtej Singh Johar’s judgment has not completely worked for the welfare of the homosexual sexual per se, as in this 543-page judgment, the 5-judge bench has not even talked about ‘Inheritance’ even once. In India, the inheritance of Hindus comes under the preview of the Hindu Succession Act, 1956. The general rules of succession in case of males and females are covered under Section 8 and 15 of the said Act respectively. As per Section 8, if a Hindu male dies intestate, then his property will devolve to his class 1 legal heirs as specified in the Schedule, which includes his widow. Similarly, under Section 15 regards the husband as an heir of a dead female. The use of terms like ‘husband’ and ‘widow’ in the present Act covers only the straight couple and the application of the same would not apply to a homosexual couple.
Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law – the Hanafi and the Shia.
A bare perusal of the Muslim law shows that a wife will receive 1/8th of the property of her husband on his death if they have children. In case there are no children borne out of marriage, she is entitled to 1/4th of the property. A daughter will receive half of the share of a son. In stark contrast, the husband receives 1/4th of the property of his wife on her death if they have children. In case there are no children borne out of the marriage, he is entitled to half the property.
Even though, the honourable Supreme Court has ruled in Shakti Vahini & Ors v. Union of India and Shafin Jahan v. Asokan K.M. that sexual autonomy and the right to choose a partner of one‘s choice is an inherent aspect of the right to life & autonomy and that an individual‘s exercise of choice in choosing a partner is a feature of dignity and, therefore, it is protected under Articles 19 and 21 of the Constitution. The above perusal creates a major loophole for a Muslim couple if married in the same sex. In order to get the inheritance rights after marriage, these homosexuals have to first fight for their right to get married among same-sex.
Labour Laws – A Heterosexual Bias
Under the labour laws, there exist many positive factors which are available to the legal heirs and representatives on the death of an employee. Due to these statutes, a relationship, which is not based on blood or marriage, is not recognised for entitlement to these benefits. Under these laws, the provisions under the term ‘moral turpitude’ are wide enough to include homosexuals, however, a mere claim of an employee being a homosexual is often enough for dismissal from his job.
Under the Employees’ Provident Fund Act, 1952 and Scheme, an employee is entitled to the provident fund upon retirement or resignation or termination. It is pertinent to note that Section 2(g) of Employees’ Provident Fund Scheme does not cover homosexual relationship. It is, therefore, impossible for gay or lesbian couple to nominate their partner under this scheme
The situation is similar under Section 6 read with 2(h) of Payment of Gratuity Act, 1972. The employee can make the nomination and the nominee is to receive the gratuity if the employee dies. This again does not cover homosexual relationships.
This Workmen’s Compensation Act, 1923 provides for compensation to be paid by the employer, in case of death of a worker, caused by injury at the workplace, to his dependants. The entitlement to compensation is based on dependency. The bias of the law is exposed in its definition of ‘dependants’.
Certainly, it is evident that the present legal framework has many inconsistencies with regard to the rights of homosexuals. At present, there is a strong need for another judicial activism for homosexuals’ rights in India, considering the example set by foreign judgments like Obergefell v. Hodges, wherein the hon’ble US Supreme Court acknowledged homosexual marriages in its entire territorial regions. This recognition was on the similar footings of rights and responsibilities of marriages of opposite genders. Nariman J. while declaring that homosexuality should not be considered as a ‘mental illnesses under the Mental Healthcare Act, directed the state to bring legislation for the welfare of the homosexual community in the country. In view of the same, the state should come up with laws which are gender-neutral in nature, at the earliest.
ABOUT THE AUTHOR
Anirudh Vijay is a 4th year student of B.A. LL.B. (Hons.) at Faculty of Law, Jamia Millia Islamia, New Delhi. He has keen interest in field of public policy. Currently, he is working as the Senior Editor at Indian Journal of Law & International Affairs (IJLIA). He tweets at @anirudhvjy
In Content Picture Credit: Foreign Affairs