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The country we live in has a history of valor and countless examples of protecting the weaker section of society, what we don’t know is such protection and success stories have unheard painful episodes.
While women in our country are still battling to overcome the domestic abuse and violence from intimate partners, the LGBTQ community is more vulnerable. Thankfully the “Protection of Women from Domestic Violence Act,2005” comes to the rescue.
As a practicing Lawyer in Bangalore, with over 15 years of experience and expertise in Family Law and Criminal Defense, I have observed many gaps in this area and there is lot more work that needs to be done to support the victims of abuse in the LGBTQ community. On 6 September 2018, the Court ruled unanimously in “Navtej Singh Johar v. Union of India” that Section 377 was unconstitutional “in so far as it criminalizes consensual sexual conduct between adults of the same sex”. We await a similar landmark judgement to amend the existing act and protect the minority community drawing additional sections or perhaps rename it to “Protection of Women and LGBTQ from Intimate Partner Violence”. The day is not far for such judgement to come. Meanwhile the victims of LGBTQ community can seek relief not only through this act but also from various other sections as in the Indian Penal Code (IPC) and the Articles of Constitution of India that violates their rights.
Section 2(a) of the Protection of Women from Domestic Violence Act,2005, “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent;
As a Lawyer in Bangalore, at least for the aggrieved LGBTQ community, I argue this definition of the act can include and extend to the LGBTQ community, such precedence can be drawn from various judgements from both the Hon’ble High courts and the Supreme court of India.
Further ray of home for the LGBTQ community who is subjected to violence, comes from this act which defines the ambit of Relationship
Section 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
The victim who is suffered discrimination, insult, violence, harm, injury and abuse (Physical, Verbal, Financial, Sexual etc…) from Parents, Friends, Employers, Society at large where a relationship exists and if proven can get a relief in the form of Protection Order, Financial compensation and Residence Orders.
The Magistrate can further order the accused to execute a bond, with or without sureties, for preventing the commission of any act of violence. Monitory relief may include where the victim is compensated by the accused for Loss of earnings, Medical Expenses, Loss caused due to damage or removal property, and a maintenance order can be passed.
In some cases, if the Victim from the LGBTQ community is a minor who is subjected to violence from the family member can be granted temporary custody to the person making application on their behalf.
Further, the aggrieved person need not wait for the case to complete, an interim and ex- parte order can be sought and if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing, or has committed an act of violence and the rights are infringed or that there is a likelihood that the respondent may commit an act of violence, he may grant an ex parte order in the favor of the victim.
A very important point, I can vouch with my 15 years of practice as a Lawyer in Bangalore, while proofs and evidence are important, in the matters of intimate partner violence, upon the sole testimony of the aggrieved person, the court may conclude that an offence under sub-section (1) of section 31 has been committed by the accused.
What are the types of Violence LGBTQ community is subjected to ?
LGBTQ community suffers more violence than the NON-LGBTQ community, such violence can extend from victimization including forced sexual activity without consent, sexual assault, blackmail, extortion, bullying, intimidation, and assault to name a few. Few examples I can quote from my experience interacting with clients are:
- Forcing the person to attend conversion therapy, subjecting them to medication and seeking help from astrologers / occultists and non-certified medical practitioners or alternative therapists.
- Forced by parents to get married with an assumption that after marriage the orientation will change.
- In an intimate relationship, victimized by the partner capturing the nude photographs / videos and subjected to blackmail and extortion. This was the case where the person although married developed attraction towards same sex relationship and was blackmailed by the partner to expose his orientation to his family, to keep it a secret he was financial abused.
- Forced to perform activities against their interest by the intimate partner, being bullied / harassed and troubled. Although both are of the same orientation, the dominant partner displayed vehemence and turned abusive.
- Solicitated sexual favors in exchange of business and work. Unfortunately, the POSH Act protects women and it should extend to this section of community too.
- Restrained from meeting the partner, telephone and access to the outer world was completely cut off, being locked in the room by the parents.
- Subjecting the victim to continue the married relationship and not signing the divorce papers, just to save the family prestige, after knowing the orientation.
- Victims are disowned by the parents and their rights to ancestral property are violated.
- A recent case I am representing the victim, on threw light on the human trafficking element, especially from Bangladesh few people are trafficked into and are victims who suffer pain beyond words that can explain. The victims rights are infringed and suffer sexually transmitted diseases too.
There were few of many such examples, overall, the LGBTQ community is subject to similar prejudices and are victimized. The challenges exponentially grew because the people from this community suffer low self-esteem and are unable to stand up for their rights, they shy away to open up and seek legal advice as they fear being branded by the society. They suffer mental health issues such as depression or self-harm followed with suicidal thoughts.
How to seek Legal Advice ? How can a lawyer assist the Victims of LGBTQ Community?
1. Legal Consultation / Legal Advice:
The focus of this conversation will revolve around
- Creating Awareness and Educating the legal rights that can be exercised
- Possible options, merits of the actions, and the various ways you can proceed with litigation.
- All pros and cons are discussed before taking any legal action, and how to seek intervention from Police and press criminal charges, FIR etc…
2. Mediation :
If you are willing to resolve the issue with the opposite party without going to the court or police
- Start the process by sending a legal notice to the opposite party
- Decide a time for negotiation / mediation
- Resolve the Dispute and draw an MOU with terms and conditions
- Compensation or Other call of action as per the agreed terms
- Get the papers registered, matter gets disposed amicably.
3. Litigation :
If you are already in litigation, either as a victim or accused, or wish to initiate litigation
- Prioritize the issues on which you need to draw litigation
- Get ready with the draft / papers to be filed
- The matter gets filed as per the jurisdiction
- Ensure you carry the required proofs / evidence to show your rights are infringed
- Key stages that follow the matters gets filed are Evidence Stage, Examination and Cross Examination Stage and the Final Arguments.
- Judgement / Orders are passed.
- If the opposite party feels the orders are not in their favor and goes for an appeal you will defend. If you believe the orders are not in your favor, you may appeal in the high courts within 60 Days from the orders are passed.
What LGBTQ cases are filed in the courts of India? What Judgements paved way for LGBTQ Rights?
Some quotable cases that draw precedence and a ray of hope for the LGBTQ victims that their issues will not only be heard but also will find justice upholding the rights.
1. NAVTEJ SINGH JOHAR V UNION OF INDIA
The Bench struck down Section 377 to the extent that it criminalized sex between two consenting adults.
2. NATIONAL LEGAL SERVICES AUTHORITY VS. UNION OF INDIA
The Court upheld the right of all persons to self-identify their gender. The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.
3. ARUN KUMAR VS. INSPECTOR GENERAL OF REGISTRATION
The court looked at the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act meant only women or included transgender persons as well. This judgement expands the category of women to include transgender people to identify as women to be brides as well. In simple words, if a man is married to a Transwoman the marriage is valid, and the transwoman also get the rights of Maintenance, Spousal Support, Divorce and if subjected to violence by her intimate partner gets the relief as per the domestic violence act.
4. S SUSHMA VS. COMMISSIONER OF POLICE
This is the case where a lesbian couple who eloped to Chennai were being harassed by their families. The court said action would be taken against professionals involving themselves in any form or method of ‘conversion therapy’ which includes revoking their license to practice.
Justice Venkatesh also directed several reforms in institutions / schools / colleges to hold Parents Teacher meetings and explain parents about the issue’s LGBTQ community, also suggested changes in the school curriculum.
A very important direction from this judgement was to Police Department, if they receive complaints from the family or any other individual about consenting adults of the LGBTQ community, close the complaint without subjecting them to any harassment.
5. VAIBHAV JAIN & ANR VS. UNION OF INDIA & ANR also in a similar other case DR. KAVITHA ARORA & ANR VS. UNION OF INDIA
The petition of Vibhav Jain vs Union of Inida seeks a declaration stating that the Special Marriage Act ought to apply irrespective of gender identity and sexual orientation, the same is the prayer cited in the matter of Dr. Kavitha Arora & ANR vs Union of India.
In the matter of Vaibhav Jain and Anr v. Union of India the Petitioners have not only challenged the Special Marriage Act, an appeal also is recorded. Two gay men who got married in United States when they tried to enlist their marriage their application was declined. The appeal was filed to proclaim that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships.
Conclusion
The current situation has many shades of gray that need to fade away for the rainbow to reflect true colors and enjoy the fundamental rights the Constitution of India provides to its citizens. While the journey towards equality, inclusiveness and non-discrimination has started, the LGBTQ community continues to face violence and discrimination.
Trust this blog post has helped you understand your legal options, and the course of action you may take when your rights are infringed. Feel free to reach me at mail@lawyersonia.com or call at 9845944896 for counselling and discussion if you are facing issues and seek legal remedy.
