by Ananya Bhargava
The institution of family has, since time immemorial, resisted any transformation of its core assertion of marital sanctity. Despite the prevalence of non-normative families, Indian law has defined familial relations exhaustively, alienating a large group of people who do not conform to this definition. Four years after the Navtej Singh Johar judgement India still lacks laws that protect the rights of queer relationships. It is high time that the legal arena recognises that parenthood, marriage and relationships are not gendered. This paper highlights the lacunae that exist between the social reality of familial structures and its understanding of the law.
The understanding of gender within familial structures is ever changing and has transformed drastically in the past few years. With the surge of the women’s rights movement, the third wave of feminism and the LGBTQ rights movement, Indian society is witnessing an increased prevalence of non-normative families and families of choice. These families may not necessarily be tied by notions of consanguinity or affinity, but nevertheless identify as families marked by notable instances of economic, romantic or emotional interdependency. Romantic or other relationships between members of the LGBTQIA+ community, live-in relationships, hijra gharanas, single parents and many other non-conjugal or non-consanguine bonds all lie at the periphery of Indian society as well as the Indian legal arena. The familial relationships between these communities, despite being a considerable part of the social reality, find negligible legitimacy in the law.
Family in its most fundamental understanding is the basic unit of society. Sociologists have considered family to be the foundation of larger social structures and institutions like religion, economics, and politics. To restrain its understanding merely to the binary genders is, to say the least, an extremely exclusionary practice. The law is not in tandem with the social evolution of a family. In a recent judgment, Justice DY Chandrachud said that “The manifestations of love and of families may not be typical but they are as real as their traditional counterparts, such atypical manifestations of the family unit are equally deserving not only of protection under the law but also of the benefits available under social welfare legislation.” While the judgment recognizes the rights of these non-normative families, the reality is quite different.
The dominant social interpretation of family pivots around the heteronormative idea of marriage, kinship and procreation. These ideas form the basis of social relationships and enforce a single, universally agreed-upon definition of family. Thus, in its most normative and common understanding, marriage (with the idea of procreation) between a man and a woman becomes the legal basis for defining a family. The law has reinforced these understandings through extremely narrow legislation which has led to the socio-legal exclusion of communities that do not fit into the marital binary. The Hindu Marriage Act, 1955 construes a valid marriage to be a sacrosanct union between a “bride” and a “bridegroom” limiting the legal rights that emanate from marriage to heterosexual couples. These rights range from social and economic security to maintenance, succession, adoption, rights against domestic violence and, most importantly, the legitimacy of children.
The Hindu code bill spearheaded the enactment of various individual Acts including the Hindu Marriage Act, 1955, the Hindu Adoption and Regulation Act, 1956, the Hindu Succession Act and the Hindu Minority and Guardianship Act. Many provisions of these Acts impose a very limited and exhaustive definition of family that pivots around marriage and blood ties. While the Bill was definitely not inclusive of all the individuals of Indian society, its provisions were still considered in line with the familial structures present in the public sphere during the time of its enactment. It was only at the beginning of the 21st century that Indian society saw greater visibility of the LGBTQIA+ communities, trans rights activists and live-in relationships. Sustained efforts by the LGBTQIA+ community and the third-wave feminist movement led to the historic judgement of Naz Foundation v. Govt. of NCT Delhi, 2009. In this case, the Delhi High Court declared S. 377 of the Indian Penal Code unconstitutional and decriminalized homosexuality. This period saw the rise of non-normative couples in the public sphere. Members of the LGBTQIA+ communities started asserting their sexuality through social media, many gay couples came out in the public. Moreover, there was also a greater acceptance of LGBTQIA+ relationships in the international community. Many countries began legalizing same-sex marriages in the initial year of the 21st century and the rights arising out of marriage like maintenance and adoption were now available to queer couples. This changed the notion and understanding of family across the globe. It was not just limited to heterosexual couples and their children, but now included queer relationships. But, while the discourse around family was evolving and the societal understanding of family was broadening, Indian law was not necessarily keeping up with these changes.
The judgement in the Naz case was short-lived, as the Supreme Court overruled it in 2014 criminalizing any form of homosexual relationships. This created a dichotomy within Indian society and its legal structure. While on the one hand, society was seeing an increased prevalence of queer relationships, on the other hand, the law highly restricted the rights and autonomy of the individuals in the relationship. Thus, here the law was not a reflection of the society, but rather it went against the realities of the very society it had arisen from. This lacuna between the social evolution and the jurisprudential understanding of the family was considerably bridged in the year 2017 when the Supreme Court finally decriminalized homosexuality in the case of Navtej Singh Johar v. Union of India. The judges in the case relied on the “principles of transformative constitutionalism and progressive realization of rights to hold that the constitution must guide the society’s transformation from an archaic to a pragmatic society where fundamental rights are fiercely guarded”. While the judgment was amongst the greatest historic wins for the queer community, its actualization and application in the provisions of the Indian family law remain unfulfilled.
In the last 60 years, Indian society has drastically transformed and so has its interpretation of what constitutes a family. Queer relationships, live-in relationships and non-conjugal relationships especially those in hijra gharanas have become prevalent in the public sphere after the Navtej Singh Johar judgement. But, despite these realities, the Hindu law governing the institution of the family remains stagnant. The stagnation of law in an increasingly transient society highlights the incapability of the judicial and legislative functionaries. The Hindu code bill has not changed in the last 60 years barring a few important yet insufficient amendments. Laws around marriage, adoption, maintenance and guardianship still revolve around heterosexual relationships and family ties. The amendments in laws revolving families, while have broadened the understanding of familial structures for heterosexual couples and have included live-in relationships, single parent households, these still remain distant to non normative structures involving queer relationships. The myriad of progressive judgements by the judiciary is yet to emanate any substantial response from the State. The Hindu personal law is stuck in time and is far behind a judicial and societal understanding of the family. This has created a legal void for non-normative bonds who are trapped at the intersection of the contrary understanding of family in law, judiciary and in society.
The predominant understanding of family as a single, immutable unit with a heterosexual couple and their child is now being challenged by non-normative manifestations of family. Society is seeing multiple permutations and combinations of familial structures in the form of single-parent households, live-in relationships, queer relationships, hijra gharanas etc. Despite their prevalence in Indian society, the discourse around their recognition remains silent. This exclusion from the legal arena has pushed the already vulnerable community to the brink of marginalization. The social evolution of the family needs to be met with legal recognition. After all, sexuality and gender are some of the most intrinsic and fundamental expressions of one’s identity and the legal exclusion of certain sexualities and genders is nothing but a flagrant violation of one’s right to life and dignity.
Author’s Bio: Ananya Bhargava (she/her) is a second-year law student at Jindal Global Law School.