Transitioning Families of India
Whenever in any part of the world word ‘family’ is pronounced, a heterosexual couple that is a man and a woman ideally and in general comes into picture with their perfect progeny whose gender is in accordance to the norms of the society, so that rules and obligation of society and its norms could be bestowed upon them and law of caressing a family could be maintained.
Validity of ‘perfect family’ notion
Actually sex and gender are the grundnorm of the society. On this very basis rises the superstructure of the society which results in regulation and formulation of a relationships in society ultimately leading to formulation of rules and regulation in society. Sex and gender are now the link through which relationships take shape in a society. With the history and usage attached to these terms, there is now a set path for these terms and there concept is subjected to act in that ascertained way with strict guidelines to follow for their subjects.
This strict adherence has actually made way for prejudice in families which have challenged the concept of love and togetherness which is the motive to have family. This ‘perfect family’ notion has categorized families actually as normal family and abnormal family.
Normal family is the one who vouches by heterosexuality and have a very obliged follow up with this concept and moment there is a slight variation family is termed as an abnormal family and there love and closeness with each is subject matter of discussion in society free to be labeled and degraded as per one’s whim and fancies and requires certificate of approval from the intellect of every individual who thinks (s)he is part of normal society.
Family Law in India
Families of India are no exception to the general practice of having a family all over the world. In fact there are certain ideals attach to an Indian family where there is a mom and dad who have reproduce children who are not only biologically but also socially male and female. Meaning by that their sex and gender should be identical and in perfect harmony with each other. For example if a child born is biological female, she should adhere to her social role of female, that is be docile, dress-speak-walk-think-act like one and shall never be violent and outgoing which is the role attached to male biological sex and social gender.
Society and framework of law are mirror images of each other. Laws catering to the need and requirement of maintain and protecting families are based on the principles which are correct morally as per the mindset of society, which takes heterosexuality as a normal way of life and only right and accepted way of growing a family.
In family laws of India there is no uniformity as such. Matters related to families are decided on the basis of their religion but what is common in these adjudications based on respective religions are ‘morals’ which are same no matter what the religion is and are the common threads which are giving a pattern of uniformity in family law of India. There is a predisposition running which procrastinates that only a man and a woman are capable of having a family not only because they can reproduce but also it is morally and religiously right. However, it is very important to note that no religion explains as to why only one man and one woman can form a family not two men or two women. At the most responsibility of explanation has been placed on shoulders of The Supreme Power, by stating that this is the way how nature intended. Similarly, laws pertaining to family matters in India give no logical justification as to why laws have been framed to govern heterosexual families only and not others like homosexuals families or LGBTI group.
Effect of sex and gender in Indian families
There is no doubt in the fact that a family provides love and unconditional support to an individual. It is like a cocoon which provides nutrition and warmth to grow and develop. But sometimes problems arise in a family related to divorce, guardianship, property matters, conjugal rights, maintenance of spouse and children etc..which are duly taken care of by laws in India as per the religious norms of two people in question. But there is a presence of special privileges to female sex and gender and special provisions are drafted in black and white to protect their rights. For example Section 125 to 128 CrPC,1963 obliges husband to maintain his parents, his wife and children. Section 498A of IPC works on notion that it is only the women who are victims of cruelty in a marriage and male sex is always the preprator of the crime. Section 13(2) of Hindu Marriage Act,1955 provides four extra ground for female sex to seek divorce and section 2 of Dissolution of Muslim marriage Act,1939 provides eight legal grounds only to women to seek divorce. Does that mean that to abide law is sole responsibility of Muslim women but men have their arena open to seek divorce? However, Apex court attempted to balance the scale in Shayra Bano v. Union of India by curbing the practice of Triple Talaq.
This scenario represents that there is inequality which is prevailing in so called normal sexes and gender of society. The historical identity of women/female being subservient and man/male being the preprator has disturb the balance of justice resulting in setting up of limitations in working of law. These limitations have refused to accept the any other variation in human nature as normal and part of system.
Women were and are expected to nurture family which limits their role to bear and rear children while men having an ace in physical strength are playing role of provider to the family, which gives a dominant position in matters of family and forces women to merely comply with the role, keep hidden their talents and strengths and always give priority to provider rather than themselves.
Such power play severely effects harmony of a family, most importantly that of the couple who shall be ideals as per Indian notions or for that matter heterosexual family matters around the world. These gender specific roles fails a marriage by creating an emotional gap amongst the couple who due to their so called ideal roles, fail to communicate their actual feelings, thoughts and emotions with each other. Therefore, Haddock has stated that to ensure love of a family gender equality is very significant.
What is important to note here is that intersex which is biological variation of human DNA is till date is medical abnormality and a social challenge which needs to be defined and mandatorily dragged in defined criteria of being a man or a woman. Such practice ultimately defeats the purpose of family which is love and dictates that above and beyond love and compassion it is the biological and social sex and gender respectively which makes and breaks families. Even law of land has defeated this Intersex human body whose existence is not even mentioned by law as its subject matter.
Constitution of India,1950 has roped in this concept of gender equality through Article 14 to Article 15 under the umbrella term of ‘Equality’ itself but seeks it amongst man and woman itself. LGBTI have became forgotten subjects as Indian nationals or for that matter as human beings. However the gender equality which is required in families of India is not in terms of materialistic need of jobs and other material stuff but here it is needed to save the institution of family. And also to stop the power tussle between man and woman who are now the better halves of each other after marriage so that real love and mutual respect, which shall be end result of formulating a family could actually be restored.
Gender equality in family laws of India is also required to broaden the horizon of family. We have to understand that any two or more individual can create a family. Nobody has to look alike or have same set of moral and religious principle to belong to one family. It was the need of the past because in the then times tribal system where survival was need of the time and violence the tool to achieve that as against the others.
Modern Families of India
Honourable Supreme court of India paved way for gender equality in family law through its NALSA Judgment by recognizing LGBTI as ‘third gender’ and granted them their much awaited identity and human rights which Indian society and legislature denied to provide to those sets of human being who not only has different/ “abnormal” set of sexual organs but also those who had different ideas about their sexuality and sexual orientation. It is because of this step of apex court towards gender equality Aarav Appukuttan and Sukayenah are about to became the first transgender couple to get married in India. But despite the fact that they are recognized under NALSA judgment as third gender , they both are going through their sex reassignment surgery to abide by the social and medical norms of clearly identified biological genitals.
Another case is of Suhana and Shilpa, another couple of lesbian sexual orientation, who ran away from their respective biological families to have family of their own are seeking legal protection from their birth families who are adamant to prosecute them for their act of love in July 2017 under Section 377 IPC. Now haven’t the institution and purpose of a family has failed here only by the reasons of heterosexuality and social role of female gender of being submissive and not a decision maker for herself. Judiciary through Suresh Kumar Kaushal v. NAZ Foundation has slammed the door and smashed the hope of having family for homosexuals and LGBTI group and has criminalized there compassion and feeling for each other. This judgment has criminalized all forms of sexual activity which doesnot help in childbirth and increase the headcount in the society. This appreciates heterosexuality as the only way of having family while rest of possibility are nothing but an offence.
It is accepted that ‘yes’ there are concerns but these concerns are more that of moral in nature rather than being legal. Because to ensure physical safety of its subjects various provision of IPC, CrPC and POCSO Act are there which prosecute any involuntarily and forced sexual conduct. And more recently by Criminal Amendment Act 2013, Section 375 IPC broke the barriers of rigid sexual intercourse as to penile-vaginal sex only but limited its scope by providing protection to women as only victims and men as preprator always. It refused to accept that despite his physical strength an adult man can be victim of ‘rape’. Legislature here failed the purpose of law by sticking to the morals and age old heterosexual dictation of society.
Here it is important to mention that even black and white texts of family law ranging from Hindu marriage act to Muslim marriage Act , Anand Karaj Marriage to Parsi and Special marriage Act, have failed LGBTI because marriage as per the text of law can only be amongst man and woman. Further to adopt a child, marriage certificate will be required which again plays the card of biological sex making process of adoption easier for them, which at present is a legal puzzle, if two people of same biological sex choose to marry and have a family.
Nevertheless this is a very positive change which has initiated the change of age old and rigid family law of India, which till date guards it fort in terms of morality solely based on one’s sex and gender.
Another important development which will change the face of families in India is Rights of Transgender Persons Bill, 2015 which will make giving away of Transgender children an offence which till date is normal practice in Indian society in name of maintaining the honour of family. What is unclear here is how does legislature plan to amend HSA and MSA where children and dependants are defined only as biological male and female and how things related to succession, maintenance etc.. will work vice versa where transgender parent(S) have biological male or female child.
It seems whatever attempt court and legislature are trying to make are half hearted and a mere eye wash. Merely bringing some legislation will not bring gender equality in families in India until the concept of family as such is first elaborated. Society and legislature both have to understand that what is important is feeling of being a family is not the nitty- gritty of biology to have and be defined as a family. To bring in the transition in family we as a society need a evolution in our understanding of human relations which can be easily addressed if gender equality is enforced in families of India, which is not a technical and calculative concept since here we are looking for love, respect and dignity which cannot be measured and more is always better. However pessimistic frame of mind has never helped in development, we have to be optimistic and most importantly consistent to bring in change so that transitioning of Indian families keeping in term with gender equality can be executed in true sense. It is to appreciated that people of India are opening up to their sexual orientation and vouching their choices of having a partner and a family no matter how slow or rigid the process is, a change has knocked the doors of family and its law to open up and embrace people as family not their biology or social sex and gender.
This process of transitioning of families of India, if provided, support of law it could actually bring in equality amongst the relationships within a family and real values of love and respect can be generated amongst the people. A gender neutral makeover is required for the laws regulating family matters in India so that age old notion of heterosexuality could be shattered and a proper chance be given to any two people, who want to have a family irrespective of their sex, gender, sexual orientations. Family laws of our country should have human as subject matter not man or woman as its patrons. This will not only save family and marriages as an institution but will help in finding loving homes for children who are deserted just because of their biological and sexual inconsistencies. This gender neutral approach will also provide joys of parenthood to transgender person also known as third gender and people of LGBTI community comfort of being mom or dad.
References 1) Criminal Procedure Code,1973.
2) Indian Penal Code,1860.
3) Hindu Marriage Act,1955
4) Dissolution of Muslim marriage Act,1939
5) Shayra Bano v. Union of India Writ Petition (C) No. 118 of 2016
6) National Legal Service Authority V. Union of India WRIT PETITION (CIVIL) NO.604 OF 2013
7) Suresh Kumar Kaushal v. NAZ Foundation SLP(C) No.37703 of 2013 @ CC NO.13105 of 2009
8) Consritution of India,1950.
9) Moral Values: Situationally Defined Individual Differences, Elizabeth D. Scott, Business Ethics Quarterly, Vol. 10, No. 2 (Apr., 2000).