Impact of Decriminalization of Section 377 of IPC in India.

The author of this blog is  Sunny Kumar 1st year student at Lloyd Law College.

Johann Wolfgang von Goethe's famous quote "I am what I feel like I am". In contemporary times, people supported the LGBTQ i.e. lesbian gay bisexual transgender Queer community. The act of accepting the changes shows that people are pushing down the cliché prevalent in society. With the change in time, various developments are taking place, people are accepting the changes in a more benign manner, this shows that the mindset of the people is changing and they are becoming more flexible to adopt the changes.  In the case of Navtej Singh Johar and others. Vs. Union of India, the Honorable Supreme Court of India decriminalized Section 377 of the IPC, which criminalized unnatural sex with consent because it violated the right to equality.[1] The Supreme Court's decision marks LGBTQ — a major milestone for identifying people across the country, where homosexuality remains a social taboo and homosexual people face spatial discrimination.

The decriminalization of Section 377 by the Supreme Court gave LGBTQ a distinct and honorable status in society. The court decriminalized it as a violation of Article 14, Article 19 and Article 21 of the Constitution.  As we know Article 14 [2]talks about the right to equality because people in the LGBTQ community were not being treated equally compared to other communities. Also as we know Article 19 (1) (a)[3] talks about freedom of speech and expression but people of the LGBTQ community were not allowed to express their feelings and emotions, therefore, it violated Article 19 (1) (a) as well. Every citizen of India has the fundamental right to live with dignity and pride which is known as Article 21[4], previously LGBTQ community people were discriminated against openly or disrespectfully by the society which obstructed their dignity causing them to live in isolation and was considered a foreigner. Therefore, they had to live without revealing their feelings that wanted to violate their right to live with dignity. Several examples have shown in relation to the humiliation that was faced by members of this community at their workplaces that eventually led to their resignation. With the demonetization of section 377, the community got equal rights as compared to other communities.

Impact of Section 377 on Indian Family law

The main problem related to the laws of the Indian family will be faced within the law which is in interpreting the terms 'husband' and 'wife'. The problems that will be faced in these legislations are discussed below:

Hindu Marriage Act, 1955

The major problem after the decision in favor of the LGBTQ community is that until now the interpretation of the term husband and wife was a common understanding among people that the husband is considered male and the wife is considered female. Interpretation of these words became mandatory in section 377 because if these terms are not interpreted, then it will be difficult to decide who should be treated as 'husband' and 'wife' in the case of gay marriage as it relates to There is no separate law governing marriage of the LGBTQ community as in the case of other laws.

If the meaning of the terms husband and wife is not properly interpreted, there will be ambiguity in understanding the law, for example in Section 13 (2) of this Act, the grounds on which the wife can get a divorce is mentioned.[5] But the condition specified in the section in gay marriage cannot be fulfilled, so he cannot claim divorce under the grounds mentioned in the section. Therefore, section 3 i.e. the definition of the Act requires amendment clause and the definition of husband and wife should be added to the clause to remove ambiguity regarding gay and transgender marriage

Indian Divorce Act, 1869

Section 10 (2) of the Act lays down the grounds on which a wife can get divorced [6]but the same problem arises when there is a case of same-sex marriage, hence the term husband and wife to clarify the ambiguity of the Act Should be explained for Even after decriminalization of Section 377, a man can be considered as a wife and a woman can be considered as a husband.

Parsi Marriage and Divorce Act, 1936

Under section 2 of the Act, the definition of husband and wife is mentioned[7], which will be amended after the legalization of section 377 as it decriminalizes homosexuality and stereotypical sex between lesbians. Therefore, the definition clause should be amended and the definition of husband and wife will be written in relation to the LGBTQ community.

Further, in section 32 (d) of the Act, an unnatural offense is one of the grounds mentioned for divorce[8], therefore, because homosexuality is considered harmful, the unnatural offense should be defined more clearly so that this interpretation. The law should not obscure in doing.

Special Marriage Act, 1954

Section 27 (1-A) of the Special Marriage Act talks about the grounds on which the wife can submit a divorce petition to the district court[9]. Here, sodomy is also given as a basis for divorce, therefore, the term sodomy should be described in a more explicit manner as it is decriminalized by the court. The husband and wife should be interpreted in relation to the LGBT community and will be included in the Act.

Conclusion and suggestion

The Supreme Court's decision on the legalization of Section 377 was a major milestone for the LGBTQ community as it empowered them to express their feelings and live a dignified life, but at the same time, it was subject to various laws such as particularly personal The laws will affect the Parsi Marriage and Indian Divorce Act, 32 (d) of 1936; Section 27 (1-A) of the Special Marriage Act, 1954, etc. Therefore, to deal with this problem many amendments should be made in the law relating to family laws such as the interpretation of the words 'husband' and 'wife' properly. Should be made.

Marriages of the LGBTQ community must take place under the Special Marriage Act, 1954 as it would be more clear and unambiguous than individual laws, gay marriage is not allowed in Sharia law, so Muslims cannot marry gay marriage. Go with your personal laws. So to remove ambiguity and prevent chaos all marriages of LGBTQ will be done under the Special Marriage Act and legislators should draft a new Act which will deal exclusively with marriages of the LGBTT community.

In conclusion, I would like to say that the idea was given by the Honorable Supreme Court in favor of the LGBTQ community, but its social implications would be a huge task to be dealt with by the members of the community. The decision should work effectively on both paper and practicality.

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[1] Navtej Singh Johar V. Union Of India, No. 76 (Crl.)  2016

[2] Indi const. art. 14

[3] Indi const. art. 19, § 1 (a)

[4] Indi const. art. 21

[5]  Hindu Marriage Act, 1955,  § 13 (2)

[6] Indian Divorce act, 1869, § 10 (2)

[7] The Parsi Marriage and Divorce Act, 1936, § 2

[8] The Parsi Marriage and Divorce Act, 1936, § 32 (d)

[9]  The Special Marriage Act, 1954, § 27 (1-A)