–By Prachi Agrawal & Charu Sharma
Introduction: Namesake Recognition
In the years antecedent to 2018, same sex carnal intercourse, regardless of consent, was considered against the order of nature and was weighed at par with bestiality, i.e. sexual intercourse between humans and animals. Under Section 377 of the Indian Penal Code, 1860 [hereinafter ‘IPC’], it attracted either imprisonment for life or up to 10 years along with fine. This provision was a colonial law concretizing the rudimentary outlook of the majority. The perspective was also recurrently affirmed by the Delhi High Court in the landmark judgment of Naz Foundation v. Govt. of NCT of Delhi and Ors.. Although the Hon’ble High Court frowned upon the provisions of Section 377 and considered them to be violative of Articles 14, 15 and 21 of the Constitution of India, 1950, it stopped short of declaring it unconstitutional in its entirety. Aggravating the firmness of its stance, the Apex Court in the case of Suresh Kumar Koushal v. Naz Foundation opined that the LGBTQ+ community comprised only a “minuscule fraction of the total population” and thereby refused to acknowledge the constitutional infirmity that Section 377 suffered from.
Contrastingly, it was only through the historic judgment of Justice K.S. Puttaswamy v. Union of India that a 9-judge bench unanimously concurred that the Constitution has established a fundamental right to privacy, creating a zone of personal autonomy within which the State cannot intrude. The judges, led by Justice Chandrachud, stated that the right to privacy and the “protection of sexual orientation lie at the core of the fundamental rights guaranteed by Articles 14, 15 and 21 of the Constitution”. This verdict laid down the jurisprudential foundation for the revolutionary judgment of Navtej Singh Johar v. Union of India, where the Court recognized the identity of the homosexuals and approved of their freedom of choice and individuality. The rights of the LGBTQ+ community were freed from the superficial bonds of gender binary. While Section 377 was not absolved exclusively, it decriminalized same sex relations to the extent that it took place between consenting adults. Non-consensual homosexual relations continued, and rightly so, to be governed as an offence falling under Section 377 of IPC.
However, while the judgment was certainly much appreciated by the masses, it was a promise meant to be broken. Although same sex consensual intercourse was legalized, every other aspect of a ‘relationship’ between humans, i.e. marriage and domestic abuse among others, was gravely neglected. Because of this legislative overlook, homosexual affairs are still considered alien and the society takes a back seat in accepting them. This ultimately compels a homosexual to withdraw from the society and avoid seeking help even in cases of abuse.
Marriage in Homosexuals: Legislative Negligence
As discussed above, one of the many reasons why the idea of normalizing homosexual relations failed was that the legislature ignored the need to amend matrimonial laws. Under the Hindu Marriage Act, 1955 [hereinafter ‘HMA’], various provisions regulating marriages, prohibited relationships or divorce, use the nomenclature of husband-wife and/or bridegroom-bride. However, it is difficult and utterly disrespectful to assign these roles to partners in same sex relationships. Similar is the case with the Special Marriage Act, 1954 [hereinafter ‘SMA’], where some parts of its text carry a heterosexual undertone in their language. The terminology used shows marriage as an affair between a male and a female or between bride and bridegroom.
Although these laws do not expressly bar same sex marriage, the same has not been explicitly recognized due to which such marriages are not registered throughout the country. During the hearing of a PIL seeking recognition of homosexual marriages, even the Solicitor General of India – Tushar Mehta, opposed the relief that such marriages be recognized under the HMA and SMA saying that our laws, our legal system, our society and our values do not recognize a marriage, which is a sacrament, between same-sex couples. Amidst such circumstances, the only solution left with homosexual couples is a live-in relationship. This outlook leaves lingering an unresolved problem of domestic abuse in such relationships.
Domestic Violence in Homosexuals: Obsolete Law
The Protection of Women from Domestic Violence Act, 2005 [hereinafter ‘Act’] was enacted to provide a streamlined process to make it easier for women to seek remedy. With changing times, the Act has shown some progression in terms of covering live-in relationships within its ambit. Moreover, earlier only an adult male could be a ‘Respondent’ under Section 2(q) of the Act. Subsequently, through a landmark judgment in 2016, the words ‘adult male’ were removed and the definition of ‘Respondent’ was made gender neutral. Due to this, abuse in live-in relationships between two females was duly covered under the Act. However, it was the duty of the legislature to update the Act to remedy abuse in gay relationships, more so because over 37.3% of bisexual men and 26% homosexual men are victims of domestic abuse. Moreover, in a study conducted on 160 gay couples (320 men), 46% had reported abuse at the hands of their intimate partners. Nonetheless, the Act falls short in fulfilling this purpose.
Under Section 2(a) of the Act, the definition of an ‘aggrieved person’ is restricted to a woman who is, or has been, in a domestic relationship with the Respondent and who alleges to have been subjected to any act of domestic violence by the Respondent. This prevents victims in a gay relationship from taking shelter under the Act. Further, Section 3 of the Act defines ‘domestic violence’ to include physical, sexual, verbal and economic abuse, among others. Paradoxically, the Act believes that all these types of violence can only be inflicted upon a woman and fails to notice that men in gay relationships are not unscathed from all these forms of abuse. In a study conducted by Greenwood, Relf, and Huang et al., it was found that 34% gay men suffer from psychological abuse, 22% suffer from physical abuse, and 5.1% suffer from sexual abuse.
Furthermore, Section 17 of the Act provides a quintessential relief, i.e. right to reside in a shared household. The idea behind the enactment of this provision was that the aggrieved person, seeking legal recourse, is not further harassed by being kicked out of the house in which she resides with the Respondent. This relief is so vital that the judiciary expanded its scope to include Respondent’s relatives household within its ambit. However, this provision specifically uses the term ‘woman’ who is entitled to this relief. In case of gay relationships, where both the parties are male, this relief is as good as a fantasy. This loophole allows the perpetrator in a gay union to kick out his dependent counterpart from his house, without facing legal consequences. It is, due to these legislative inefficiencies, that this community cannot seek legal relief even if they muster the courage to come out and accept their position as a victim.
Suggestions and Conclusion: Way Forward
The LGBTQ+ community has been immensely susceptible to social and professional brutality, harassment, discrimination and prejudice. They have been marginalized and stigmatized since ages and the same continues even today. It was the consequence of the unwavering spiritedness of various individuals, NGOs, organizations, etc., that the sentiment concerning the community began to make progress and consensual intercourse between same sex couples was legalized. But it certainly isn’t enough. Despite having paved a way for a more liberated future, the journey is full of obstacles created by narrow-minded people who find it difficult to adapt to the changing needs of the society. In such a scenario where complete social acceptance still seems far-fetched, it is only through legal recognition of rights that a person from the LGBTQ+ community can rightfully survive in the Indian society. The equality of all kinds of relationships before law is likely to play a big role in changing the perception of society over time.
For this, it is essential that adequate provisions governing their marriage, inheritance, adoption, divorce, maintenance, etc. be made by gender-neutralizing the matrimonial laws. Further, in light of the statistics provided above, it is of primary importance that appropriate amendments be made in the Protection of Women from Domestic Violence Act, 2005 to provide protection to every citizen, irrespective of their gender. Since the Act was aimed to provide relief from abuse in a domestic set-up, it must do so for every person facing such abuse. Such amendments in the relevant statutes will provide more social recognition to the community. The laws will further lead to obliteration of the likelihood of discrimination at workplaces and social spheres, giving them the status of a human rather than a homosexual/bisexual.
[Prachi Agrawal is a fourth year B.B.A LL.B (Business Law Hons.) student at National Law University, Jodhpur.
Charu Sharma is a fourth year B.A. LL.B (Constitutional Law Hons.) student at National Law University, Jodhpur.]