BREAKING NEW GROUND
02, May 2019
Prelims level : Polity and Governance Mains level : Social Empowerment
- The Madras High Court’s recent judgment is truly path-breaking for the LGBTQ community The judgment also opens doors to the larger LGBTQ community for availing civil rights including marriage, succession and inheritance.
Path breaking decision:
- The judgment quotes NALSA v. Union of India (2014), which held that transgender persons have the right to decide their “self-identified gender”. Now, when this is read along with the Supreme Court’s explicit reference to the American court’s guarantee of right to marry to homosexual couples. This shows that there cannot be a legal bar any more to extending civil rights such as marriage, succession or inheritance to LGBTQ couples who have decided to get married consensually, have married in accordance with the existing laws and are not in violation of any other laws.
The Hindu Marriage Act, 1955:
- The main purpose of the act was to amend and codify the law relating to marriage among Hindus and others.
- Besides amending and codifying Sastrik Law, it introduced separation and divorce, which did not exist in Sastrik Law. This enactment brought uniformity of law for all sections of Hindus. In India there are religion-specific civil codes that separately govern adherents of certain other religions.
- Present case, the Madurai Bench judgment, however, breaks new ground when it comes to the interpretation of the statutory terms found in the Hindu Marriage Act, especially that of bride (pertaining to women).
- It states that the expression “bride” occurring in Section 5 of the Hindu Marriage Act cannot have a static or immutable meaning.
- As noted in Justice G.P. Singh’s Principles of Statutory Interpretation, the court is free to apply the current meaning of a statute to present-day conditions.
- Section 377 of the Indian Penal Code is a section of the Indian Penal Code introduced in 1864 during the British rule of India. It makes sexual activities “against the order of nature” illegal.
- On 6 September 2018, the Supreme Court of India ruled that the application of Section 377 to consensual homosexual sex between adults was unconstitutional, irrational, indefensible and manifestly arbitrary, but that Section 377 remains in force relating to sex with minors, non-consensual sexual acts. At the preliminary hearings before the Supreme Court in Navtej Singh Johar, the Solicitor General, representing the Government of India, sought the curtailing of the scope of the case to that of the decriminalisation aspect or the constitutional validity of Section 377 of Indian Penal Code, 1860 alone.
- The Supreme Court, consequently, did not have an opportunity to examine the bundle of rights that were to naturally arise from the striking down of Section 377.
- The present judgment is truly path-breaking for the LGBTQ community, which is denied equal protection of laws with regard to civil rights.