Open Access Research Article
PREVALENCE OF HETERONORMITIVITY IN THE CONCEPTION OF FAMILY IN INDIA (By-Ifrah Barge)
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Article Details
PREVALENCE
OF HETERONORMITIVITY IN THE CONCEPTION OF FAMILY IN INDIA
Authored by-Ifrah Barge
Table Of
Contents
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PARTICULARS
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INDEX OF AUTHORITIES
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INTRODUCTION
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SAME-SEX RELATIONSHIPS IN THE
INCEPTION OF FAMILY IN INDIA
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LEGISLATIONS: A TOOL TO REINFORCE
HETERONORMATIVITY IN INDIA
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LEGAL STATUS OF LIVE-IN
RELATIONSHIP IN INDIA
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CONCLUSION
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Index Of
Authorities
Statutes Referred:
The Indian Penal Code,1860.
The Transgender Persons (Protection of
Rights) Bill, 2019.
The Surrogacy Regulation Bill, 2019.
Cases Referred:
Naaz Foundation v
Government of NCT of New Delhi and Others, WP[C] No. 7455/2001.
Suresh
Kumar Koushal v. Naz Foundation Civil
Appeal No. 10972 OF 2013.
Abhijeet
Iyer Mitra v. Union of India, WP [C]
No. 6371/2020 & CM Appl. No. 22554/2020.
Navtej
Singh Johar v. Union of India AIR
2018 SC 4321.
Grace Banu Ganeshan & Ors. v. Union of India & Anr vs. Union of India &Anr. (2020).
Indra Sarma. Vs. VKV
Sarma. 2014 [1] RCR [Crl]; 179. [SC].
Lata Singh v. the State of U.P [2006] 5 SCC 475.
Khushboo v. Kanniammal AIR
2010 SC 3196.
Badri Prasad Vs. Dy. Director
of Consolidation & Ors., AIR 1978 SC. Balasubramanyam v/s Suruttayan Alias Andali
Padayachi and Others. Civil Appeal No. 1188 of 1982.
Chanmuniya v. Virendra Kumar Singh Kushwaha, (2011) 1 SCC 141.
2
Word Count- 2487
Introduction
The traditional take on family is one
that revolves around biological relations. The basic concept of family is
established on kinship connections between individuals through marriage or
through lines of dissent that connect blood relatives. The normative definition
of marriage is the sexual union between two heterosexual individuals and the
same defines family relationships. However, with time, the definition of a
family has widened, and it includes non-normative forms of family such as
same-sex families, stepfamilies, single-parent families, etc. This paper
examines the impact of the scope of the definition of family on various
non-traditional families. The paper is divided into three sections for this
purpose, the first part looks at same-sex couples and their legal struggle for
being recognised as a family. The second part analyses the difficulties faced
by Transgender Persons and looks at the heteronormativity of The Transgender Persons (Protection of Rights) Bill,
2019 and the Surrogacy Regulation Bill, 2019. The last part of the paper
highlights the legal status of live-in relationships in India and the
reinforcement of the heteronormative concept of family through the same.
Same-Sex
Relationships In The Inception Of Family In India
Every non-queer Indian person has the
legal freedom to choose which family law would apply to them based on their
community or religion. The codified marriage acts have not explicitly defined
marriage as a heterosexual union nor do these acts explicitly forbid same-sex marriages.
However, the Indian laws have "heteronormative underpinnings" and
have typically been understood to exclude same-sex partnerships. [1]For
instance, Section 377 criminalised anyone who willfully engages in sexual
intercourse against the natural order with any man, woman, or animal with
facing life imprisonment or with imprisonment of either description for a term
which may extend to 10 years, and shall also be liable to pay a fine[2].
However, in July 2009, in the landmark judgement of Naz Foundation v. Govt.
of NCT(National Capital Territory) of Delhi,[3]
the Delhi high court bench led by Chief justice Ajit Prakash Shah and
3
Justice S Muralidhar decided to
strike down section 377, claiming that it violates the Indian Constitution's
fundamental rights to life, liberty, and equality of the LGBTQ community. In
December 2013, the Supreme Court overturned this decision of the Delhi high
court on the basis that section 377 of the IPC “does not suffer from the vice
unconstitutionality and the declaration made by the division bench of the high
court is legally unsustainable” in the judgement of Suresh Kumar Koushal v.
Naz Foundation[4]. After
all the struggle to legalize homosexuality in India the Supreme court scrapped
Section 377 in the Navtoj Singh case stating that it infringed on
constitutional rights to privacy, freedom of expression, equality, human
dignity, and protection from discrimination. The Court reasoned that
discrimination based on sexual orientation violated the right to equality, that
criminalising consensual sex between adults in private violated the right to
privacy, that sexual orientation is an inherent part of self-identity and that
denying it would be a violation of the right to life, and that fundamental
rights cannot be denied on the basis that they only affect a minority of
the population. However, even after this victory same-sex marriage could not be
legalised in India. In a recent petition by Abhijeet
Iyer Mitra v. Union of India (and
other connected petitions)[5]
the petitioners argued that The Citizenship Act of 1955, Section 7A(1)(d),
makes no distinction between heterosexual, same-sex, or queer spouses and It
states that a 'person who is married to an Overseas Citizen of India and has
been married for two years should be declared eligible to apply for an OCI card
as a spouse. However, Solicitor General Tushar Mehta, representing the Central
Government, argued that "spouse" refers to both husband and wife, and
"marriage" is a term associated with heterosexual couples and thus
there is no need to file a specific reply with respect to the Citizenship Act.
The SG further claimed that there is a misconception of Petitioners regarding
the case of Navtej Singh Johar v. Union of India, [6]which
decriminalized homosexual acts between adults in private. He said, "The
issue here is whether marriage is permissible between homosexual couples. Your
Lordships have to decide that. There is some misconception regarding the Navtej
Singh Johar case. It merely decriminalizes...It does not talk about marriage.
Earlier, the Centre had filed an affidavit opposing the pleas. It had said,
"there is a "legitimate state interest" in limiting recognition
of marriage to persons of the opposite sex only", and that the institution
of marriage is not merely a concept relegated to the domain of
4
privacy of an
individual. The affidavit further stated
“ The acceptance of the institution of marriage between two individuals of the
same gender is neither recognized nor accepted in any
uncodified personal
laws or any codified statutory laws",[7] The final hearing
on this case will be heard on 30th November 2021. The battle for
legalizing same-sex marriage is been going on for years and unfortunately, the
LGBTQ community has only faced disappointment. A same-sex couple has to face
severe financial, emotional and mental consequences as a result of the denial
of marriage rights. Certain
legal benefits such as succession, maintenance, and pension rights that are
available to married couples are not available to same-sex couples. Economic
benefits from laws like the Employment Provident Fund Scheme, 1952 and
Workmen’s Compensation Act, 1923 are given only to those related by blood or
marriage.22 After the Central Adoption Resource Authority (CARA) issued guidelines
for adoption, single persons and unmarried couples have found it increasingly
difficult to adopt [8]Since
same-sex couples cannot enter the sphere of normative family in India unlike
the heterosexual couples they remain deprived of certain legal and governments
polices that use marriage and family relationships as a condition for a wide
range of benefits.
Legislations: A Tool To Reinforce Heteronormativity In India
The transgender
community has to face multiple problems in Indian society including social,
economic, political and legal. The foremost social problem arises in their
families. They are subjected to verbal and physical abuse by their family
members. trans genders add subjected to discrimination by the family as well as
the larger society due to their sexuality and gender identity. Even in the 21st
century the trance community still has to face considerable stigma and remain
outcasted by society their problems. Transgender people are
frequently denied medical treatment and admission to hospitals. Even doctors
are uninformed on how to care for
transgender people. [9]
Harassment and
aggression, including physical assaults on EMTs, act as a disincentive to
receiving competent medical care[10]. Discrimination
in the workplace has resulted in unemployment and poverty as a result of
refusal to hire, harassment, and privacy violations.
Since their gender
identities are not recognised, transgender students are sometimes denied
admission to educational institutions. In India, there is no formal
acknowledgement of transgender education.[11]Identity
documents are required to exercise basic civil rights such as the right to
vote, the right to an education, the right to inherit, the right to health and
public services, and so on. Hiring biases, on-the-job discrimination, wage
disparities, a lack of legal resources, inability to access documents, and
denied benefits all impede trans people's employment opportunities[12].
Previously, the hijra community was unable to
hold public office due to harassment. However, under the Transgender
Person Protection Act of 2017, they are now able to do so, and anyone who
refuses to allow them to do so will face a fine or imprisonment. [13]There
are multiple other problems that the trans community continues to face even
after the introduction of laws to protect them. On 5th August 2019,
The Lok Sabha passed the Transgender Persons (Protection of Rights) Bill, 2019.
This Bill is another step forward in maintaining the idea of family as a
heteronormative one and excluding other non-normative forms of a family from
the definition. The Transgender Persons (Protection of Rights) Bill, 2019
highlights the heteronormative concept of the family in Section 2 (c) wherein
it defines family as a " means a group of people related by blood
or marriage or by adoption made in accordance with the law.”[14]
The bill by defining the family relationship as one based on marriage restricts
the transgender community from entering the domain family as they do not
identify as “man” or “women” and as discussed above as of now individuals
belonging to the same sex can not have a legal marriage in India. By being
excluded from the family relationship the transgender people remain deprived of
several other legal rights given to the citizens of India. Moreover, under
Section 3 the bill further states that if the parent or any immediate
family of transgender people is
unable to take care of them, then the person can take shelter in a
rehabilitation centre.[15]
This implies to get the trans person
has the option of either continuing living with their blood relatives who as
discussed above subject them to violence and abuse or are forced to take
shelter in rehabilitation homes. Moreover, the bill also fails to recognise the
prevalence of families by choice such as the guru – chela relationships amongst
the trans community. The non-biological forms of kinship formed by trans people
include the gurus or mothers who had the family and undertake economic and
social responsibilities. The hijra households also include the chela or the
children of gurus. [16]The
Transgender Persons (Protection of Rights) Bill,
2019 has been challenged by Grace
Banu Ganeshan & Ors. v. Union of India & Anr [17] claiming that various sections of the bill violate
the fundamental rights of the citizen including section 12 (3) which denies the
trans persons the choice to live in an alternative arrangement. [18]Thus,
the transgender community cannot form a family of their own and also have to
face rejection from their natal families. Another step taken by the state in
reinforcing the family definition with a heterosexual underpinning is the
surrogacy regulation bill, 2019. Section 2 (g) explicitly defines a couple as a
legally married Indian man and movement above the age of 21 years and 18 years
respectively. [19]The Bill
only includes a heteronormative couple as eligible for surrogacy. Thus, making
surrogacy illegal for live-in couples, same-sex couples, transgender couples,
single men and single women. Section 2 (g)
read with Section 4 (iii) (c)], also
clearly states that the heteronormative couple should be married for a period
of 5 years and have no child of their own[20].
Despite the existence of diverse families, the state continues to reinforce the
idea of family as a heteronormative one and threatens the alternative family
structure of the transgender community.
Legal
Status Of Live-In Relationship In India
The “Live in
relationship” is an arrangement in which two people live together in a sexual
relationship without being married. This can be defined as another form of
chosen family wherein the individuals are not associated through marriage. The
individuals in this arrangement enjoy the same emotional, economic, Intimate,
conjugal relationship with their partner.
Live-in
relationships are legal in India. In cases such as Indra Sarma v. V.K.V.
Sarma[21]the
Supreme Court has observed that a live-in relationship may be considered
immoral by the society but is not illegal and does not amount to any offence
under the law. Similar judgments have been given in cases like Lata
Singh v. the State of U.P[22]
and Khushboo vs Kanaimmal [23]and
another when the court stated that s ‘Right to life” and is not illegal.
Although there is no specific law defining live-in relationships in India the
courts have recognized it has a valid marriage in certain cases. One of the
landmark cases is Badri Prasad vs. Dy. Director of Consolidation [24]wherein
the supreme court gave legal validity of marriage to a 50-year live-in
relationship and justice Krishna Iyer remarked that When partners have
cohabited for a long time, there is a strong presumption in favour of wedlock
and further added that although the assumption might be rebutted, the person
seeking to deprive the relationship of legal origin bears a hard burden.
Legitimacy is favoured by the law, whereas bastardy is frowned upon. The presumption
of marriage in case long years of live-in relationship was also upheld in the
supreme court judgement of the landmark case of P.S. Balasubramanyam v.
Suruttayan alias Andali Padayachi [25]and
others. Moreover, in various cases, the female partner is granted rights that a
wife is entitled to in a marriage such as property rights, maintenance
rights, etc. For instance, In the case of Chanmuniya vs. Virender
Kumar Singhl[26], it
was held that a man who has lived with a
woman for a long period, even if they haven't met the legal requirements for
lawful marriage, should be responsible for her maintenance if he abandons her.
The court also ruled that a woman in a live-in relationship is entitled to
maintenance or remedies under the Protection of Women from Domestic Violence
Act,2005. However, the supreme court stated that according to the Protection of
Women from Domestic Violence Act of 2005, not all live-
in relationships
will amount to marriage. Certain conditions must be met in order to receive
such benefits, and this must be proven by evidence. "If a man has a
keep" that he finances and
uses for sexual
purposes or as a servant, it is not regarded a marriage-like arrangement.[27]
Although by
providing legal recognition to live in relationship and validating it as
marriage the state has taken a step forward in expanding the domain of family
in India however no legal representation for the LGBTQ couple has once again
reinforced the idea of a heteronormative arrangement of family.
Conclusion
To summarise, there
is no ideal definition of a family. However, the widely accepted definition of
the family involves a group of people who are directly linked by kin
connections, the adult members of which assume responsibility for caring for
children.[28]
Even though the Indian law doesn't adopt any particular definition of the
family its exclusion of non-normative forms of family and its failure to
provide legal recognition to such families serves as evidence of its
heteronormative stance on the family. Individuals should have a choice of
choosing their family and not be restricted to blood relationships. It is high
time that the law recognises the existence of non-normative forms of family
including same-sex families, transgender families, single-parent families, etc.
Considering same-sex marriage as illegal and illegitimate is just adding to the
multiple problems that the LGBTQ community already faces. Moreover, The
Transgender Persons (Protection of Rights Bill),2019 and the Surrogacy
Regulation Bill,2019 drafted for protecting the minorities attempts to control
non-conforming identities and non-biological family relations and reinforce the
family structure as heteronormative. Even though legalising live-in
relationships and validating them as married couples is a positive step towards
broadening the family arrangements, we have miles to go because of the
exclusion of the LGBTQ community in the eligibility of live-in relationships.
Article Information
PREVALENCE OF HETERONORMITIVITY IN THE CONCEPTION OF FAMILY IN INDIA (By-Ifrah Barge)
Authors: Ifrah Barge
- Journal IJLRA
- ISSN 2582-6433
- Published 2022/08/09
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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