The idea of gender and sexuality gained momentum in the legal domain after Section 377 of the Indian Penal Code was read down. With the ongoing Pride Month, this article explores rigidity of Indian statutes governing the family laws and aims to reveal how the LGBTQI community can be alienated from their rights unless some legislative action is taken. The article follows a discussion of laws related to solemnization of marriage, adoption restrictions and dubitable sections of conjugal laws which are heteronormative and disregard the possibility of genderlessness in same-sex or inter-sex couples.
NORMATIVE DISCOURSE OF THE TRANSGENDER ACT
The Madras High Court judgment in the case of Arunkumar v Inspector General of Marriage held that the term ‘Bride’ used in Section 5 of the Hindu Marriage Act, is inclusive of all transgender and intersex people who identify themselves as females. This may have rectified the gender binary existing in our statutes to some extent but still fails to uphold the rights of people without a gender identity. The term ‘transgender’ which appears in the judgment as well as in the Transgender Act of 2019, is treated as an umbrella term to include all gender identities. However, this challenges the dignity and privacy of an individual by contradicting the judgment given in the NALSA case. According to Section 2(k) of the Transgender Act, all genderqueer, intersex or trans individuals are blanketed under the term of ‘transgender’. The Act also confers a right on individuals to get registered as a transperson according to section 5 and 6 of the Act. The certification which is required to prove one’s gender identity feigns a gender-neutral discourse due to the appearance of the letter ‘T’ and a unique gender labelling procedure which is contrary to the procedure of identification of normative males and females. This creates a socio-political distinction between these three gender identities.
THE LOOPHOLE IN MARRIAGE LAWS
The Supreme Court identified the right to marry a person of one’s choice as an inseparable component of Article 21 of the Indian constitution in the case of Shafin Jahan vs Asokan K.M. and Ors. However, there are several rights and reliefs attached to marriage which may be denied to inter-sex or same-sex couples due to the heteronormative binaries in our marriage laws. The pronouns in our statutes create rigid boundaries and require the assignment of the status of a male or female to make laws applicable to the LGBTQI community. Such constrictive pronouns are visible in Section 4(c) of the Special Marriage Act. The essentials mentioned in this Act specify the age limit for males and females as a mandatory condition to solemnize a marriage. However, this specification endorses the idea of two heteronormative genders and forces the couple to mould themselves into these social categories irrespective of the lack of homogeneity in gender traits.
THE RIGHT TO DIGNITY
These legal boundaries distort the right to dignity conferred upon all individuals by the Indian constitution. As elucidated in the case of Shiv Narayan And 4 Others vs State Of U.P., the concept of dignity is intrinsic to the idea of empowerment and incorporates ‘respect’ for every individual in its definition. These respects are of three kinds, namely:
(i) Respect for the agency of an individual to exercise free choice;
(ii) Respect for the choices made under such agency; and
(iii) Respect for the need to have appropriate conditions and context where a person can exercise his free and informed choice.
Due to the obligation to embody a masculine or feminine gender, laid down by our statutes, inter-sex and same-sex couples can be denied recourses in cases of divorce, adoption, maintenance and other family-related matters our laws lack appropriate conditions for their empowerment. Even the recently enacted Transgender Act reeks of categorization to assign an identity, thus creating an environment where the gender of an individual becomes their legal identity.
CONJUGAL RIGHTS AND REPRIEVE
Such lack of gender neutrality and inclusiveness is also visible in Section 13 of the Hindu Marriage Act and Section 2 of the Dissolution of Muslim Marriages Act, where the identification of a ‘wife’ or a ‘woman’ in the marriage is of utmost importance in order to provide relief. Similarly, Section 125 (4) (a) of the CRPC does not guarantee maintenance to a woman who is imagined to be the wife by any artificial definition of the same. This definition has been borrowed from the Hindu Adoptions & Maintenance Act, 1956, which makes adoption of children in cases of intersex marriages difficult.
The institution of marriage is related to one’s pursuit of happiness, which is a feature of Article 21 of the constitution. The biological implications faced by transgender, same-sex and intersex couples make them resort to child adoptions which are furthermore gender centric, creating inconvenience in cases of custodial rights. When a couple without a binaural gender identity intends to adopt a child, the adoption rights are conferred upon only one of the parents due to Section 11(v) of the Hindu Adoptions & Maintenance Act. This hampers the transfer of guardianship if the adoptive parent dies or attains full custody when the marriage is dissolved. In cases of cruelty and domestic violence, the Protection of Women From Domestic Violence Act, 2005 elucidates that an aggrieved person, for the convenience of the Act, can only be a woman under Section 2(a). The conundrum arising from these heteronormative statutes is that of determination of the female character among the couple. In some cases, neither the biological nor the psychological evidence would corroborate to the gender identity, excluding these individuals from the law’s mandate or making them undergo gender reassignment surgery.
GENDER BARRIERS IN INHERITANCE OF PROPERTY
The plausibility of denying reprieve in cases of domestic violence due to gender roles is an example of alienation of gender fluid community. However, such alienation can also occur in the sphere of inheritance of property and land entitlements. Section 3, part 1(f) and part 2 of the Hindu Succession Act defines who can be an heir to the property. It specifies how it can only be a male or a female, and there exists no overlap between the rights of males and females. The restrictive language of this Act makes it imperative for individuals to adopt either of these two genders, ignoring the fluidity of gender identities.
INTERNATIONAL LAWS AGAINST GENDER DISCRIMINATION
In the case of NALSA v Union of India, the Supreme Court upheld the Yogyakarta Principles as guidelines of International Human Rights Law with respect to Sexual Orientation and Gender Identity. The disclosure of identity and obligation to have a gender certificate has been mandated under the Transgender Act in order to recognize all transsexuals as legal entities. This gender bifurcation and identity divulgence stands against these Yogyakarta principles. They entail that the right to privacy includes the choice of not disclosing the information related to a person’s sexual preferences, orientation, gender identity and decisions surrounding these constructs. The obligations of non-discrimination under the International Covenant on Civil and Political Rights (ICCPR) have been adopted by India. Article 17 of these rights alludes to the policy of non-intervention in the institution of marriage and advises the state against arbitrary rule formation in this sector. Moreover, Article 23 and 26 regard every individual the same legal status irrespective of gender, sex and other socio-political constructs. They also make it essential to award equal rights to all persons in cases of dissolution of marriage and delegation of other familial responsibilities.
The ineptness of the Indian legal system is visible in its lack of gender neutrality. Presumption of mechanically segregated sexual orientations and gender in any sphere of law creates loopholes denying justice to the Queer society and inhibiting the process of justice. However, these biases are so well rooted in our statutes that amendment procedure seems tedious and requires an overhauling to legitimize the claims of the LGBTQI community.
This article is authored by Varda Saxena, student of BA LLB (Hons.) at Jindal Global Law School, Sonepat.
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