Name of Author- Nikhil, Gitarattan International Business School
Edited by – Sulesh Choudhary
INTRODUCTION
The term ‘Gender’ is commonly thought to refer to masculinity or femininity; however, an individual can identify with a variety of other gender identities apart from these binary options. Gender identity encompasses how a person views themselves in terms of gender and this perception may not align with their sex. Male or female as assigned at birth. It can also mean feeling like a man or a woman or identifying as something in between, on the gender spectrum. In today’s world of the first-century privacy rights are valued just as highly as the right to life. Every person holds a fundamental ‘right to gender’. Gender identity embodies the core value of ‘equality’. Embraces the concept of fairness. Presently individuals, within the LGBTQ+ community are granted rights ranging from the ‘right to exist’ to the ‘right to foster’ yet in some regions of the globe they still encounter instances of ‘social inequality’.
Marriage has long been seen as an institution in society when it involves relationships between men and women according to the laws of nature perceived by many people as holy Those views failed to demonstrate any inherent differences between homosexuals and heterosexual individuals The discrimination they face is primarily rooted in societal attitudes, towards gender identity and fluidity to shift in the 20th century with an increasing acceptance of homosexuality driven by the advocacy efforts of same-sex couples asserting their rights Research and investigations have.
LGBTQ+ Community’s Right to Marriage
After the landmark decision of the Supreme Court in ‘navtej singh johar v. Union of India, which decriminalized section 377 of the indian penal code, 1860 to the extent where two adults are engaged in consensual sexual activities, a ray of hope for equal rights and dignified treatment to the sexual minorities, i.E., the lgbtqia+ community was found. Post the decision in Navtej Johar, there have been considerable advances in indian society to discuss the issue of homosexuality and the recognition of lgbt rights. Numerous individuals have emerged from their closet, embracing and accepting their sexual identities and orientations.
All this makes a logical inference that homosexuality is not uncommon in India. The rights of this community have been deliberately ignored, and there has been institutionalized victimization of people who fall under a sexual minority. Post the 2018 judgment which decriminalized homosexuality, there has been a growing demand for legal recognition of same-sex marriages. For this to be realized, multiple petitions have been filed since 2018 seeking to enact a new set of laws or amendments to the existing ones that would carve out a space for homosexual couples. This is essential to attain equality and prevent discrimination based on gender identities. The current Indian personal civil laws recognize marriages between a biological man and a biological woman and discourage same-sex marriages in India.
The Importance of Legal Recognition
It is to be noted that there happen to be no explicit legal restrictions on homosexual marriages since the decriminalization of section 377. However, there are additional aspects that need to be given due consideration. To begin with, consider the following situation, one Lesbian couple approached the Registrar with a request to issue a certificate of marriage under the Special Marriage Act. The Registrar was unclear whether he was authorized to issue the certificate to a same-sex couple. Due to the ambiguity, the Registrar had to turn the couple away. Later, smelling the confusion, one of the partners was persuaded not to marry. In this scenario, who is supposed to be blamed? It’s no shortcoming of the Registrar but the law, which lacks clarity.
One could wonder why legal recognition of marriage has become so essential. To answer, the State’s role in marital relations has to be scrutinized. Although being a secular affair, marriage is linked with a particular set of rights and liabilities shared between the spouses.
Same-Sex Marriages under Family Law
In India, Hindus, Muslims and Christians are governed by various rules on marriage. The Hindu Marriage Act, which regulates “Hindus, Sikhs, Jains, and Buddhists”, stipulates that “marriage can be solemnized between any two Hindus”. Similarly, the Christian Marriage Act prescribes rules of marriage amongst Christians. Muslim marriages are not regulated by any statutory legislation and lack any formal definition of marriage, but the union is mostly perceived as a contract for procreation. But the overall notion of a marriage, in all personal laws, envisages a “heterosexual union”.
Same-sex marriages under the Special Marriage Act, 1954
An alternative that should not raise religious eyebrows is to seek an “amendment to the Special Marriage Act of 1954” to allow same-sex weddings. The Act is a secular law that allows interreligious and inter-faith marriages. Marriage does not occur through religious ceremonies; instead, is registered by a Marriage Officer. The SMA appears to apply to heterosexual couples in its current version. However, same-sex weddings are easily accommodated within its framework by making minor amendments.
LGBTQ+ Community’s Right to Adoption
After the landmark decision of the Supreme Court in ‘navtej singh johar v. Union of India, which decriminalized section 377 of the Indian penal code, 1860 to the extent where two adults are engaged in consensual sexual activities, a ray of hope for equal rights and dignified treatment to the sexual minorities, i.E., the lgbtqia+ community was found. Post the decision in Navtej Johar, there have been considerable advances in Indian society to discuss the issue of homosexuality and the recognition of lgbt rights. Numerous individuals have emerged from their closet, embracing and accepting their sexual identities and orientations. All this makes a logical inference that homosexuality is not uncommon in India. The rights of this community have been deliberately ignored, and there has been institutionalized victimization of people who fall under a sexual minority.
Post the 2018 judgment which decriminalized homosexuality, there has been a growing demand for legal recognition of same-sex marriages. For this to be realized, multiple petitions have been filed since 2018 seeking to enact a new set of laws or amendments to the existing ones that would carve out a space for homosexual couples. This is essential to attain equality and prevent discrimination based on gender identities. The current Indian personal civil laws recognize marriages between a biological man and a biological woman and discourage same-sex marriages in India.
Existing Legislation on Adoptions
The Ministry of Women and Child Development regulates the Central Adoption Resource Authority (CARA), which manages and controls local and international adoptions. CARA is the central authority responsible for looking after adoptions at the inter-country level as per the Hague Convention on Inter-country Adoption regulations, which the Government of India ratified in 2003.
Hindu Adoptions and Maintenance Act, 1956
This Act entails the requirements and legal obligations of Hindu adults who wish to adopt a child. According to Sections 724 and 8(c)25 of the said Act, authorisation is not required if the spouse is not of sane mind, has abandoned the world, or abandoned their children. These provisions also provide for the adoption of a child by unmarried men and women of sound mind having attained the age of majority. “The words spouse and wife used in Sections 7 and 8 indicate that the Act does not recognise adoption by same-sex couples. In addition, the ability of Hindu males and females to adopt is clarified, leaving a grey area for applying such laws to third-gender couples.
Adoption Regulations, 2017
These regulations are significantly more restrictive than the HAMA in terms of restrictions. Unmarried men and women can adopt if they are financially sound, mentally and emotionally stable and have no life-threatening conditions. However, a single man is prohibited from adopting a girl child, while a woman is not prohibited from adopting a boy child. On the other hand, Section 11(iii)28 permits the adoption of a girl child by a single man provided that the child and the adoptive father are at least 21 years of age.
Juvenile Justice (Care and Protection of Children) Act, 2015
Prospective Adoptive Parents (“PAPs”) are eligible under Section 57 of the JJ Act. According to one of the requirements, “no child shall be put for adoption until the couple has had at least two years of a good marital relationship.” The same-sex couples could not establish a two-year stable marital relationship since they were not legally recognised until recently, making them ineligible to serve as PAPs.
Contemporary Issues and challenges concerning Adoption by same-sex couples
The Madras High Court in Arun Kumar Sreeja vs. Inspector General of Registration declared that a marriage between a man and a transgender woman, both of whom follow Hinduism, was considered valid. The court concluded that the term “bride” in the home does not have a specific definition and should be interpreted based on the current legal framework. Transgender individuals should not be denied the benefits and opportunities provided by social institutions in mainstream society, as the Indian constitution is an enabling document that promotes their inclusion in the mainstream.
In the case of Laxmi Kant Pandey v. Union of India, the court acknowledged that “every child has the right to a family.” It can be interpreted that this right encompasses the right to adoption. Additionally, article 39(f) of the constitution mandates that the government implement policies to ensure that children have access to the necessary opportunities and resources for their healthy, free, and dignified development. Consequently, confining a child to an institution and denying them the opportunity to have a family is equivalent to depriving them of their freedom and dignity in life, which goes against our national policy principles.
Effect of lack of legislation: From the lens of the COVID-19 Pandemic
The COVID-19 pandemic has had a devastating impact on the lives of children, wherein many were left orphaned due to the deaths of their parents. According to the National Commission for the Protection of Child Rights (NCPCR), over 9300 children in India have lost their parents since the pandemic began in 2020. The apex court had emphasized that the actual number of orphaned or abandoned children would be greater than what has been reported in official and public records. The pandemic, which led to an increase in the number of children without parents, has prompted and fueled the growth of child trafficking.
CONCLUSION
The ongoing discussions about the legalization of same-sex relationships or marriages have been a contentious issue for many years. The LGBTQ+ folks have been standing up for their basic rights since they were born, like being treated the same, being free, keeping things private, living safely, and being true to who they are. Organisations must initiate global campaigns to persuade national governments to provide basic rights to everyone. Western ideas have greatly affected the way people in Eastern countries think and, to some degree, changed their overall view of homosexuals. Simplified: Western influence and European trends have changed the idea of same-sex marriages, giving people in this group new reasons to be inspired.
REFERENCES
- Adoptions Regulations,2017(http://cara.nic.in/PDF/Regulation_english.pdf)
- Aneesha Mathur, Over 9300 children lost parents or were abandoned in the pandemic, NCPCR informs Supreme Court(https://www.indiatoday.in/india/story/9300-indian-children-orphaned-abandoned-in-covidpandemic-1809427-2021-06-01)
- Fleur Mulligan, “Gender Identity: Developing a Statistical Standard”, Vol. – II, United Nations Department of Economic and Social Affairs Statistics Division, 289, Pg. No. – 7 (2015).
- Joshua Kellison, “Lesbian and Gay Parenting: A Parental Need Assessment and a Mixed Method Analysis of Discrimination Parenting and Coping Strategies”, Vol. II, Arizona State University, Pg. No. 127, December (2014).
- The Constitution of India, 1950.
- The Indian Penal Code, 1860.
- The Hindu Adoptions and Maintenance Act, 1956.
- The Juvenile Justice (Care and Protection of Children) Act, 2015 § 2(2).
- The Juvenile Justice (Care and Protection of Children) Act, 2000.
- Vanita, Ruh. “Same-Sex Weddings, Hindu Traditions and Modern India”, Feminist Rev., no. 93, 2009.
