HOW FAMILY LAW PROVISONS AFFECT THE LGBTQ+

COMMUNITY

SUBMITTED TO MS. ISHNOOR

(PRIFESSOR FOR FAMILY LAW)

SUBMITTED BY:
SHRITHIK KOTHARI
SY BA LLB ‘A’
A041
2019-24
ABSTRACT
It is a fact that homosexuality is not looked upon fondly in India, so it should come as no
surprise that the laws governing family affairs or ‘family law’ such as marriage, adoption,
surrogacy, inheritance, etc. among other things are fairly discriminatory, silent and/or
exclusive of same-sex couples or single people belonging to the LGBTQ+ community. The
ways in which these laws affect the civil affairs of same-sex couples and the LGBTQ+
community as a whole in specific regards have been examined in this paper.

RESEARCH PROBLEM
To find out and examine how family law provisions affect the LGBTQ+ community.

INTRODUCTION
The renowned Merriam-Webster dictionary defines emancipate [in one way] as “to free from
any controlling influence (such as traditional mores or beliefs)”. However, when it comes to
Indian laws, more specifically, family laws, which are very important in any nation for they
govern as well as regulate important civil processes and procedures, have been designed in
such a way that they specifically discriminate against the LGBTQ+ community, not to
mention even single parents recently1, all based on presumptions and societal morality. The
legislature as well as the courts looking at these laws through the lenses of the majority and
not through that of constitutional morality mean that the will and beliefs of the majority have
been superimposed upon the minorities, suppressing them and robbing them of not just their
rights, but also their dignity and free will. The Centre has said that Indian society was
basically “a socially recognised union of two individuals which is governed either by
uncodified personal laws or codified statutory laws”. “There is no acceptance of the
institution of marriage between two individuals of the same gender either in personal laws or
codified statutory laws,” it said in response to a court notice regarding a plea for legalizing
same sex marriages in February 2021.

1
The Surrogacy (Regulation) Bill, 2019 prohibits single [unmarried] women to have a child through surrogacy
whilst single widows and divorcees might be allowed as per recommendations; single men and same sex
couples are also prohibited from the purview of ‘altruistic surrogacy’- meaning contracting a ‘close relative’ as a
surrogate by a heterosexual married couple who have been childless for five years of their marriage
 2
Moreover, the statements made by the Solicitor General (SG) mean that any chance of
emancipation and liberation from centuries of traditional discrimination and decades of legal
discrimination is far, far away, and that even a PIL in 2019 asking for legal recognition of
rights for same-sex couples to marry, adopt, inherit, etc. was dismissed by the Hon’ble SC
(Supreme Court) means that many a civil problem for the minority continue.

The Indian society has traditionally been in stark opposition to homosexuality, with a
majority of the country’s populace in active support of leaving out [of the law’s purview]
those who do not conform to traditional or ‘socially acceptable’ norms, not to mention
criminalizing their acts. No matter what the religion is, there is mostly some way or another
by which it places a bar on homosexuality. This is one of the main reasons as to why the laws
have been traditionally discriminatory towards the LGBTQ+ community. A lot of religious
customs, beliefs and practices which barred homosexuality or looked down upon it, or only
promoted heterosexual relationships were essentially transformed and codified into laws,
ergo making the laws discriminatory or silent when it comes to LGBTQ+ community.

COMPLEXITYAND PROBLEMS CAUSED BY FAMILY LAW

Family laws in India represent a far more complex category of laws and the mere recognition
of same-sex marriage through a judicial challenge to specific provisions may only translate to
limited gains for the community.

Both legislations (the Special Marriage Act/ SMA, 1954 and the Hindu Marriage Act/ HMA,
1955) currently only recognize heterosexual marriages i.e., marriages within the male-female
binary and therefore exclude marriages outside this binary. In recent times while many high
courts, by recognizing the right to choose a partner, have extended protection to same-sex
live-in couples wanting to live with each other, family law frameworks do not recognize such
relationships.

Family laws cannot be viewed in terms of marriage rights only. A host of other issues such as
succession, parenthood, economic dependency and protection from intimate partner violence
become relevant in the context of the state regulation of the family. In India, marriage often

2
The SG said in a reply to the Delhi High Court in September 2020 that “our values do not recognize marriage,
which is a sacrament, between same-sex couples” in relation to a petition demanding legalization of same-sex
marriages.
becomes an entry point to such rights since the vision of marriage remains central to family
law.

Currently, statutory frameworks dealing with succession, parenthood and related matters
operate in the male-female binary and assume the heterosexual family as the normative
standard. Therefore, even if specific provisions of marriage laws such as the Hindu Marriage
Act were to be declared unconstitutional or were to be read to include same-sex marriages,
provisions of various other statutory laws would continue to exclude same-sex relationships
thereby denying them broader civil rights.

For instance, provisions of the Hindu Succession Act would exclude same-gender spouses
since it is premised on the patriarchal Hindu undivided family while laws regulating
parenthood such as the Hindu Minority and Guardianship Act would only account for the
heteronormative family in determining the guardianship of minors.

Even if one were to base marriage rights in secular legislations such as the Special Marriage
Act, aspects of religion-based personal laws would continue to be relevant. This is because
the secular and religion-based personal law regimes in India remain highly interconnected
with aspects of personal law continuing to apply even if individuals opt for a secular law.
Therefore, two Hindus marrying under the Special Marriage Act would continue to be
governed by provisions of the Hindu Succession Act in matters of succession and other
similar religion-based personal laws in matters of parenthood and so on.

Moreover, many provisions of these legislations such as the process of solemnization of

marriage, grounds for divorce, maintenance, and remedies such as restitution of conjugal
rights represent, arguably outdated, heterosexual assumptions that may not be easily
translatable to same-sex relationships. Many of these frameworks may thus be ill-suited to
LGBT+ families in India.3 “Being married carries along with it the right of maintenance, right
of inheritance, a right to own joint bank accounts, lockers; nominate each other as nominee in
insurance, pension, gratuity papers, etc.” Numerous other problems could be cited – not least
the cases of same sex partners who have not been allowed hospital visitation rights to their
partners of many years.4

3
Id.
4
Vikram Doctor, A Civil Contract: Same sex relationships and marriage, The Economic Times, (Feb. 29,
2020), https://economictimes.indiatimes.com/industry/media/entertainment/a-civil-contract-same-sex-
relationships-and-marriage/articleshow/74408022.cms?from=mdr
Apart from the emotional and social benefits of having one’s union officially recognised,
right to property or inheritance is one of the practical rights that same-sex couples would
enjoy 5. For example, medical insurances that would normally cover a man’s wife would not
extend to a gay man’s partner, leaving a lot of people vulnerable, especially if there is only
one breadwinner in the household.

MADRAS HIGH COURT RULING AND ITS IMPACT

In 2019, the Madras High Court had stated that the term “bride” as per the Hindu Marriage
Act would also mean a transsexual and not just refer to someone born as a woman. The bench
included Justice GR Swaminathan, who quoted the Supreme Court’s judgments and epics
like Ramayana and Mahabharata and stated that the “bride” in the Hindu Marriage Act could
not have a static meaning, the expression includes not only women but also transwomen. The
judge had also directed the authorities to register a marriage between Arun Kumar and Sreeja,
who is a transwoman.

While transwomen have found inspiration in this precedence, it has not yet impacted gay men
or lesbians wanting to get legally married in India. Author Sandip Roy says, “This is
obviously a big step for equality but we should not construe it as the court is opening the door
to recognizing same-sex marriage between two gay men or two lesbian women. It is still very
much within the heterosexual marriage framework of a bride and a groom with the court
merely saying a bride could be a trans woman as well. It’s not saying yet that the Hindu
Marriage Act should recognised a bride and a bride and a groom and a groom.”6

Coming to adoption, if same-sex couples would be allowed to adopt as couples, then the issue
of inheritance of the adopted child wouldn’t arise as the property of the couple would
automatically go to the child. However, as of now, since the only legal way a person from the
LGBTQ+ community can adopt is through the criteria of being a single parent, it would mean
that the property of the partner whose name is not on the documents as an officially
recognised parent, would not automatically be inherited by the adopted child.

5
Priya Menon, Same sex union: Fight on for an equal marriage, Times of India, (Oct. 6, 2020),
https://timesofindia.indiatimes.com/india/the-fight-for-same-sex-marriage/articleshow/78487439.cms
6
Shamayita Chakraborty, Despite social marriage, gay couples still yearn for legal rights, Times of India,
(June 25, 2019), https://timesofindia.indiatimes.com/life-style/spotlight/is-gay-marriage-a-reality-in-
india/articleshow/69928813.cms
 (Fig. 17: An overview of basic rights same-sex couples are denied,

courtesy The Times of India)

THE PROBLEM OF MAINTENANCE

Maintenance provisions under different religious laws as well as the secular provisions
provide for women/ wives to get maintenance from their [male]partners, or for husbands to
get maintenance from their wives, meaning that men or women in a same sex relationship are
excluded from its purview, not to mention other same sex couples also suffer if the act
governing them requires them to be ‘legally married’ or ‘divorced’. Since same sex unions
are unrecognized by the law, the courts cannot enforce rights of maintenance towards
partners in same sex relationships.

A purview of India’s maintenance laws:

7
Id.
Due to the presence of different religions in India, marriage, divorce and maintenance are
governed by their own personal laws.

Hindus: The Hindu Marriage Act, 1955, and the Hindu Adoption and Maintenance Act, 1956,
give women the right to claim maintenance after divorce. 8 Section 24 of the HMA also
provides for husbands to claim maintenance from wives if the latter is financially-well off
and the former is not.

Muslims: Under the Muslim Women (Protection of Rights on Divorce) Act, 1986, the wife
has to be paid maintenance in the iddat period and mehr has to be returned.

Christians: Under Section 37 of the Indian Divorce Act, 1869, the divorced wife can get
maintenance for life by applying in a civil or a high court.

Parsis: The Parsi Marriage and Divorce Act, 1936, makes the husband liable to pay
maintenance to wife for life if she remains unmarried after divorce, and can get a maximum
of one-fifth of his net income.

Secular: Under Section 125 of the Code of Criminal Procedure, 1973, members of all
communities can claim maintenance including wives, children and parents if they are unable
to support themselves.9 Further, section 20 of the PWDV, 2005 10 enables ‘women’ to get
maintenance from the ‘respondent’, who, as per section 2(q) is “any adult male person who
is, or has been, in a domestic relationship with the aggrieved person and against
whom the aggrieved person has sought any relief under this Act”.

HOW ADOPTION AND SURROGACY PROVISIONS ARE A HASSLE

Adoption in India is governed by the Hindu Adoptions and Maintenance Act, 1956 (HAMA)
and the JJ Act11. Under HAMA, adoption can be undertaken by Hindus, Buddhists, Jains,
Sikhs and other religions governed by Hindu Law. While stating the capacity for adoption,
Sections 7 & 8 of HAMA use the words “husband” and “wife” which implies that the act
does not recognize adoption by same-sex couples. Moreover, capacity for adoption is
explained for Hindu males and Hindu females and therefore, there is a grey area regarding

8
Riju Mehta, Money & Relationships: When can a woman claim maintenance from a man?, The Economic
Times, (December 30, 2019), https://economictimes.indiatimes.com/wealth/plan/money-relationships-when-
can-a-woman-claim-maintenance-from-a-man/articleshow/73005369.cms?from=mdr
9
Id.
10
The Protection of Women from Domestic Violence Act, 2005 (India)
11
The Juvenile Justice (Care and Protection of Children) Act, 2015 (India)
application of such laws to third-gender couples. The JJ Act opens the option of adoption to
any person regardless of their religion, with the criteria being through the Central Adoption
Resource Authority (“CARA”). CARA is the apex controlling body in adoption matters
under the Ministry of Women and Child Development and has framed the Adoption
Regulations, 2017(“AR”) which lays down the rules and guidelines for adoption programs in
the country. The eligibility of prospective adoptive parents (“PAPs”) is discussed under
Section 57 of the JJ Act and Regulation 5 of AR. One of the requirements states that “no
child shall be given in adoption to a couple unless they have at least two years of stable
marital relationship”. Since same-sex marriages are yet to be recognized in India, it is not
possible for same-sex couples to establish two years of stable marital relationship and this
renders them ineligible to be PAPs. Moreover, the societal stigma involved with such kind of
relationships further discourages the authorities from granting adoption to such couples.12

There is an ever increasing and also a present rate of infertile couples, but still India’s
adoption rate is so abysmally low as there is also an accelerating rate of orphans in India.
According to United Nations Children’s Fund (UNICEF), India has 29.6 million orphaned
and abandoned children in 2018 and by 2020 the number has increased to 31 million. So, it
could mean that a child can be grown all by his/her own, away from a home, parents,
guardians, love, care, protection rather than giving them to a homosexual couple. There needs
to be a huge readjustment in the government’s focus on child development because currently
millions of children are being wasted and denied a future of opportunities to realize
themselves. The government’s Central Adoption Resource Authority (CARA) adoption
statistics show that in 2010 there were 5,693 in-country adoptions, while in 2017-2018, there
were only 3,276 in-country adoptions. These are disgraceful figures for a population as
mammoth as India’s. And currently, there are approximately only 20,000 parents in line
waiting to adopt, compared to the 27.5 million couples who are actively trying to conceive
but are experiencing infertility, according to the Indian Society of Assisted Reproduction 13.
Similarly, the Surrogacy (Regulation) Bill, 2019, which was passed by the Lok Sabha in
August 2020, clearly chalks out restrictions that disallow same-sex couples, couples of Indian
origin, as well as single unmarried women and single men in general from having a child

12
Shubhangi Singh, ADOPTION BY SAME-SEX COUPLES IN INDIA: A RIGHT LONG OVERDUE, Indian
Review of Advanced Legal Research, (Jan. 13, 2021),https://www.iralr.in/post/adoption-by-same-sex-couples-
in-india-a-right-long-overdue
13
Vaishnavi Kaushik, A discussion on the adoption and marriage rights of LGBTQ + community?, The Daily
Guardian, (Jan. 28, 2021), https://thedailyguardian.com/a-discussion-on-the-adoption-and-marriage-rights-of-
lgbtq-community/
through surrogacy, mainly virtue of section 2(g). As per section 2(g) “couple” means the
legally married Indian man and woman above the age of 21 years and 18 years respectively.
Plus, since the bill seeks to ban commercial surrogacy, it has very specific and difficult
conditions for qualifying to have a child through ‘altruistic surrogacy’, making it very
difficult to the average couple to have a child, let alone a same-sex one.

CONCLUSION/ WAY FORWARD

Time and again, as pointed out above, the multiple laws that govern family affairs in India are
either discriminatory or silent on the LGBTQ+ community. Virtue of this, neither do the
courts nor does the general population recognize or pay heed to the welfare and rights of this
suppressed community. The legislature must realise that its high time the laws were
immersive, unequivocal and inclusive towards the LGBTQ+ community, and must put in
efforts to frame the requsite laws, whilst the government must undertake sensitization ajd
awareness campaigns so that pople can understand the plight of the LGBTQ+ community and
same sex couples, and the myriad of problems tey face as a result of their non-conevntional
sexual orientation. The alarming statistics pointed out above as well as the calls for equal
treatment for the LGBTQ+ community make a solid case for the legislature and courts to
work in tandem to allow the suppressed minorities to adopt children as per a suitable legal
procedure, not to mention giving them other rights such as their adopted children being
allowed to inherit property, recognition to same sex marriages. This could be done by making
the SMA, 1954, a gender-neutral act by changing its current form which references and
requires the ‘couple’ to be ‘male’ and ‘female’. Taking a step further, bringing in provisions
for civil unions/ partnership agreements that seek to regularize marriage as a form of social
contract rather than a sacrament (this enables people, the legislature and courts to place this
concept on a pedestal) are required as a progressive step in light of modern times, for it
should not be mandatory to be married to have a child or adopt one, among other things.
Many nations such as New Zealand have such provisions and India should follow in these
footsteps to project itself as a liberal, modern, progressive and inclusive nation where the
rights and choices of all citizens matter.