Applicability of law to LGBT community: shortfalls and challenges

Abstract

The Researcher believes that one of the most contemporary issues of morality arises in cases of homosexuality. It’s a big question of debate, that whether The Indian Penal Code can justifiably be employed to protect the people from harming their own moral character. The issue of sodomy confronted judges with the question whether laws upholding sexual morality yield with the demand of sexual freedom in the personal life of LGBT Community? Section 377 - of the Indian Penal Code refers to ‘Unnatural offences – whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine’. Recently in the case of Navtej Singh Johar V. Union of India, the Supreme Court said that Section 377 of the Indian Penal Code was unconstitutional so far as it criminalises consensual sexual conduct between adults of the same sex. It is one of the landmark judgements in the Indian history which won the hearts of LGBT Community while allowing them to perform a symbolic same-sex marriage, yet same-sex couples are not recognised currently in any form though the researcher feels that still there is a loophole in the decision. Though the LGBT Community is yet not recognised in any Indian Law like Hindu Marriage Act 1955, Hindu Adoption & Maintenance Act1956 or any other Family Laws they seek for their rights like Adoption, Maintenance, Divorce, etc…suppose if they want divorce which law will be applied. What if they get divorced and afterwards have to pay the maintenance, then if they are a same-sex couples who will pay to whom? Can they go for an Adoption? There are many rights which flow out of a legitimate wedding. This paper attempts to analyse the applicability of family laws in same sex marriages.