Hon’ble Supreme Court of India through the significant judgment Navtej Johar v Union of India struck down section 377 of the Indian Penal Code thereby legalising consensual gay sex. The judgment, although a historic one, would serve just as the first step towards ensuring equal rights for gay relationships. The opinion that marriage is a sacred union between two individuals of the opposite sex is still widely prevalent in India. Moreover, legislations governing marriages also indicate the same.
Section 5 of the Hindu Marriage Act lays down the conditions for a valid marriage. One among them requires the bride to be of at least 18 years old and the bridegroom 21 wherein it can be inferred that the marriage denotes only a heterosexual one. Also, the Shariat law applicable to Muslims validates and governs only a heterosexual marriage. Correspondingly, the secular Legislation, The Special marriage Act, 1954 employs the terms ‘man’ and ‘wife’ throughout the Act. Grounds for divorce also differ for the husband and the wife.
It is not only marriage and divorce laws that needs to be addressed here. Laws governing maintenance and adoption are no different. Natural guardianship of an adopted child under the Hindu Minority and Guardianship Act passes to the adoptive ‘father’. Also, the Hindu Adoption and Maintenance Act only concerns itself with the entitlement of a hindu wife to be maintained by her husband. The husband’s right to interim maintenance is regulated under section 24 of the Hindu Marriage Act wherein he is eligible for maintenance provided he has no independent source of income and only if he establishes that he is unable to make his ends meet owing to a physical or a mental disability. Uncodified Muslim personal law does not allow adoption but the Supreme court recently pronounced that Muslims are also entitled to adopt under the Juvenile Justice Act even if their personal law does not permit it[i]. The secular law, CrPC provides maintenance rights only to the wife. There exists separate rules for inheritance of the ‘wife’ or the ‘husband’ of the person who died intestate.
From these observations it is evident that the existing law would be inapplicable to same sex couples. Same sex marriages were recognised by a landmark case in the United States[ii]. Many countries passed llaw legalising the same. It is not only section 377 of the IPC that was needed to be written down as unconstitutional. It is made clear that the intention here is not to blame the legislations. It is put forth that Law is supposed to be dynamic in nature. It needs to acknowledge and accommodate changes in the society. Scientific research comparing homosexual with heterosexual couples have shown that parenting skills do not have anything to do with sexual orientation[iii]. In a country like India where the institution marriage is given paramount importance, the contemporary need is a secular legislation validating same sex marriages as a measure towards providing equal rights to the LGBT community.
[i] Shabnam Hashmi v Union Of India & Ors.
[ii] Obergefell v Hodges, 192 L.Ed. 2d 609.
[iii] Scientific Research: Deconstructing Myths about Homoparental Families https://www.familleslgbt.org/documents/pdf/CFH_MELS_Module_Mythes_ENG.pdf [Last viewed on 16/12/2018.]
This article is written by
Raghavi Rajagopalan of
Tamil Nadu National Law University.
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