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A Comparative Study of Legal Frameworks for Gay/Lesbian Families in the UK and India

The decriminalization of homosexuality in India marked a significant step towards equality. But since the ancient Indian society, India has been a very inclusive and tolerant place to live in. It was in fact the colonization of India by the British that changed the perception of homosexuality in India. Yet, while the legal landscape has evolved, the reality for the LGBTQ+ community remains a complex interplay of progress and persistent challenges. This article delves into the specific hurdles faced by homosexual couples in constructing their families, with a comparative lens on India and the United Kingdom.

It is essential to clarify that this exploration is undertaken without prejudice or intent to disparage any community, ideology, or lawmaker. Rather, the aim is to illuminate the disparities in legal frameworks and their impact on the fundamental right to family. The article seeks to understand why, despite advancements, the path to family formation remains fraught with obstacles for the LGBTQ+ community.

By comparing India and the UK, we can assess the progress made, identify the gaps, and propose potential legal reforms. Ultimately, this article questions whether the dream of marriage and family is an unattainable luxury for the LGBTQ+ community in India, or if legislative changes can pave the way for a more inclusive and equitable society.

Colonized India
Historian Harbon Merkins believes that the British imposed their legal system including Article 377 on India to criminalize homosexuality, in line with their Christian beliefs Thomas Macaulay introduced Article 377 in the Indian Penal Code in 1860[1] being the misdeeds of England's Buggary Act of 1533[2], which made homosexuality a crime and was declared punishable by death, and the act reflected a Victorian law, which Christian morality received so affected, that sex is only for procreation and any other form would be considered immoral

The British saw the Indians as flattering and tried to discipline them to impose European morality on the colonized people. They found India's sexual overtness shocking and tried to suppress it, thus anglicising India's moral consciousness and reframing the sexual meanings that pre-colonial India accepted men as incest more compared to Britain where such acts were capital crimes. Some individuals in Britain who felt sexually repressed also sought refuge in India to escape the constraints of Victorian society.

However, when the British established their rule in India, they imposed harsh moral attitudes and punishments on homosexuality. Despite India repealing 1,200 obsolete laws in recent years, the Indian judicial system continues to rely on some colonial-era laws. The impact of British colonial rule is still evident in the legal landscape in India, and debates are raging about whether it is time to abandon these colonial legacies.

Indian Culture

The main opposition to gay marriage in India stemmed from the belief that it was contrary to Indian cultural norms. The All India Muslim Personal Law Board (Jadeed) considers homosexuality to be immoral, and the Vishwa Hindu Parishad (VHP) shares this view, arguing that the LGBTQIA+ community should address their issues in society rather than through the courts.

The VHP insists that court decisions on such cases are accepted by the public but have no real merit, arguing that these cases should remain arbitrary and should be resolved collectively, rather than through the Supreme Court with opinion another has overwhelmed them. The VHP also argues that although homosexuality is not a mental illness, it is a form of pollution, cycle, or blame forcing something into society as religious.

According to the ancient Hindu scripture Manusmriti, homosexuality is a crime and those involved will lose their family, severe punishment as individuals were excluded from marriage and other social rights in community but this does not mean that homosexuality was completely forbidden in ancient India. Kama Sutra, chapter 2, section 9, verses 33 and 34, recognizes homosexuality between two men as legal and natural (Natural). The Krittivasa Ramayana tells the story of King Bhagiratha who was born to two women.

According to the text, Lord Shiva instructed the two wives of King Dilipa in a dream after his death to love each other in order to procreate. These instructions were followed and one of them became pregnant and eventually gave birth to the revered King Bhagiratha who is famous for bringing the river Ganges from heaven to earth.

The Kama Sutra also analyzes various aspects of sexuality in detail, such as oral sex acts (auparashtika), homosexual acts, and sexual acts or refers to these individuals as a third nature. In addition, the scripture describes women who have lustful, deliberate, and independent sexual relations with other women. The Kama Sutra recognizes eight forms of marriage, such as Gandharva marriage, which allows same-sex union and translates to marriage or cohabitation without parental consent.

The Rig Veda mentions Varuna and Mitra, often referred to together as Mitra and Varuna, a homosexual couple representing the two halves of the moon. According to the Shatapatha Brāhmaṇa, on the night of the new moon, a friend plants a seed in Varuna, and when the moon wanes, this is seen as the result of that seed. and it is said that Varuna plants his seeds in Mitra on the night of the full moon, ensuring that the moon waxes in the future.

Islam, the second largest religion in India, begins the prayer with "Bismillahir Rahmanir Rahim", which translates to "In the name of God, the Beneficent, the Merciful" This raises a question as to how God the Merciful can create men with them and then punish them for it. Historical figures like Amir Khusrau, a prominent musician at the court of Alauddin Khalji and considered the founder of Urdu literature, showed great affection for Nizamuddin, who even wore a sari for him and held a Basant festival There is no evidence of punishment for homosexuality in records of Qazi courts. The Mughal Emperor Babur, the founder of the Mughal Empire, expressed his admiration for a boy named Baburi in his memoir Baburnama, where he wrote a poem lamenting his illness.

Sufi poetry also contains homosexual references, with the Sufi saint Buleh Shah exploring fluid ideas of sensuality and religion in his writings Another Sufi saint Shah Hussain claimed to have fallen in love with a Hindu boy named Madholal, and eventually transcended their earthly existence and was buried together in Lahore as a symbol of divine love In Voyages to the East Indies.

When he discovered the prevalence of homosexuality among the Mughals of Bengal that it is widespread and impunity The first Prime Minister of India, Dr. Rajendra Prasad opposed private legislation from the beginning, where Prasad who advocated development while respecting indigenous Indian cultural values and beliefs was more of a religious scholar and Vallabhbhai Patel is balanced in his opinion, who held the position of Madhya Bhumi. Major public struggles took place between Nehru and Prasad over the Hindu Law Act.

Dr. Bhimrao Ambedkar submitted a draft of these Bills to the Constituent Assembly in October 1947 and Nehru endorsed it. The purpose of the laws was to establish a uniform set of rules for all Hindus. Dr. Rajendra Prasad led the Constituent Assembly in intervening that such laws should be enacted only after consulting public opinion. He believed that because of many traditions, codes of law would prevail only with the consent of the people.

The debate over the legal bills extended beyond the Assembly to conservative religious leaders and social workers, who strongly opposed them. Despite the controversy, Nehru was determined to pass the bills, even if it meant facing greater opposition. Angered by Nehru's behaviour, Prasad wrote a letter to him, criticizing Nehru for being unfair and undemocratic.

Independent India

On August 24, 2017, India's Supreme Court granted the country's LGBT community the freedom to safely express their sexual orientation[3]. An individual's sexual orientation is therefore protected under the federal right to privacy law. There was considerable concern about the visibility of prostitutes in London in the 1950s, and the rise in homosexual crime and media scandals involving many prominent men The Wolfenden Committee, reported in 1957, recommended the criminalization of private homosexual activity among consenting adults over the age of 21, but greater penalties for public homosexual activity places.

The law was not changed for Scotland until 1980, or for Northern Ireland until 1982.

Role of Parents

For parents of gay children, accepting them for who they are, let alone understanding what it means to be gay, is a disturbing and transformative process. Most of them don't even know what LGBTQ means. They face shame and backlash from society and relatives for their children. Most adoptive parents of gay/lesbian children do not abandon them, kick them out of the house, or arrange for a forced same-sex marriage. In 2019, the Bombay High Court ruled that a mother cannot reject her child simply because he is gay[4]. The court held that sexual orientation is not a valid reason for owning property. In India, you have to give a public notice in the newspaper that you will reject any child or family member.

This will effectively move children out of desire, out of the social circle of the family and allow their children to see a sexual identity or gender identity that is not safe for those they do not want In India, emotional pressure from parents to arrange marriages for their children is not viewed by the courts as 'strength' but as love.

Forced marriage is a criminal offense in England and Wales. If someone forced you to marry them, you could face up to seven years in prison. Forced marriage is a criminal offense in England and Wales. Forced marriage can result in up to seven years in prison. If you are under 18, you should not be forced to do so. Family members may also be required to disclose your whereabouts. Police can also apply for a compulsory protection of marriage order.

Deputy Prime Minister, Lord Chancellor and Secretary of State for Justice Dominic Raab MP said: "By cracking down on forced marriages in our society, this legislation will better protect vulnerable young people. Those working to convert children into underage marriages will now face the full force of the law." It is not possible for same-sex couples to legally marry in the Church of England.

Use of force against women can attract IPC Section 350[5]. Similarly, Section 15 of the Indian Contract Act, 1872[6] can also be made applicable here. Sometimes forced marriage can cause severe psychological trauma which may lead to suicide of the woman and subsequently attract Section 306 of IPC[7]. Coercion of a woman is a violation of her fundamental rights guaranteed under Articles 14[8], 19[9] and 21[10] of the Constitution of India and violates human rights Articles 1, 2, 3, 5 and 19 of the UDHR. It also violates Article 16 of the UDHR[11]. The laws in India provide a legal remedy for any violation of the right to marry by choice. Whether or not legal proceedings are initiated against the other person depends entirely on the person who is usually the person's parent.

The law states that marriage is valid only when both equals freely consent to the marriage. If a girl is forcibly married and free consent is not obtained, one under 1 can sue for nullity of the marriage. Forced marriage is a violation of human rights, even gender violence. Forced marriage is also rape as defined in Section 15 of the Indian Contract Act, 1872[12]. State-wide laws on forced marriage in India: Prohibition of Child Marriage Act 2006,[13] The Guardian and Wards Act, 1890[14], The Majority Act, 1875[15] , The Family Courts Act[16], 1984. The Protection of Women from Domestic Violence Act 2005[17], Article 23 of the International Covenant on Civil and Political Rights 1966[18] as well as Section 366 of the Indian Penal Code[19] .

Living-in and right to live in matrimonial house

The extent to which Live-in rights and benefits apply to same-sex couples is not specific, as it makes a live-in relationship the only union recognized by law to some extent the Uttarakhand High Court views law as a relationship between a couple with between them is not so illegal, In June 2020; "This is a fundamental right guaranteed under Article 21 of the Constitution of India, so vast as to infringe upon the fundamental right of a spouse to self-determination with respect to one's identity and freedom of sexual choice."

In the choice of the protection.[20] A gay couple from Mahisagar district in Gujarat petitioned the Gujarat High Court to grant police protection from their family and recognize their right to cohabit, in June 2020. The couple had have concluded a treaty of friendship as a means of legitimizing their relationship. The Supreme Court allowed their plea on July 23, 2020 and directed the Mahisagar police to provide security to the gay couple.

In the Chameli Singh case (1995), the Court held that the right to asylum is a fundamental right alongside the general right to life, which includes a life of dignity (Article 21); , and the right of all citizens to decide where they live in any part of the country (Article 19(1)(e)).[21] This principle has been confirmed in subsequent judicial decisions.

In the Shantistar Builders case, the court held that food, clothing and shelter are "basic human needs" and therefore an integral part of the right to life under Article 21 India will also extend the right to marry to same-sex couples- the term 'restoration of the couple's rights' implies the restoration of conjugal obligations. 'Conjugal obligation' is understood to mean the obligation to live together and to provide companionship for each other. In a recent case, Satish Chander Ahuja v. In Sneha Ahuja, (2020), the court held that a woman has the right to reside in her father-in-law's house.[22]

Marriage

Why do same-sex couples want to get married? Why can't they be happy to legally acknowledge their sex and where they live? A marriage certificate brings civil rights. Unmarried couples cannot have joint bank accounts, joint insurance, access to hospitals, intestate transfers, and mortgages. They pay the same taxes as same-sex couples; Call it marriage or not but consider it a civil union. They have a hard time renting, let alone being gay; not even a bachelor.

Out-and-proud homosexuals can be Googled and easily identified as gay. To live peacefully, they must continue to lie that their mate is their brother, friend, and so on. Proponents of same-sex marriage are not calling for new laws and the repeal of existing laws. Some important changes to the Special Marriages Act such as removing the clause that requires judges to post pictures of people getting married on notice boards for 30 days so that anyone can actually challenge their marriage and use the word " man" instead of " male" or "female". D.Y. Chandrachud (CJI)-" SMA means the word male and female. In India, all marriages are governed by law.

Just to humanize the law, we can't ignore it unless you beat the law. At the very least, the court should recognize the right of same-sex couples to form civil unions until Congress steps in. The public should not assume that the court should decide every case. We draw the line and decide what is our jurisdiction legally and what is in public life."

It is not possible for same-sex couples to legally marry in the Church of England. If you are a same-sex couple, by law, you cannot marry in the Anglican Church. You can get married in other religious buildings if:

Religious organizations allow gay marriage to take place
Listed venues for marriage of same-sex couples.

Citizen association Same-sex couples can have a civil partnership ceremony in a religious building licensed by the local government. It was almost 18 years since the Civil Partnerships Act 2004,[23] and 10 years since the Marriage (Same-Sex Couples) Act 2013[24], or the Marriage Equality Act was enacted and that was when the Church of England opposed it both variables. It has since changed its views on civil partnerships, but remains opposed to same-sex marriage, doesn't allow same-sex marriage in the church and requires its priests to be celibate in same-sex relationships

The Methodist Church in England and the United Reformed Church perform same-sex marriages , Global- And a few other provinces in the Anglican Communion do or Deepika Singh v. Central Administrative Services, 2022 : In this case, the SC expanded the definition of family and observed that family relationships can include unmarried partnerships or queer relationships and these unconventional families should enjoy equal protection and benefits under the law.[25]

Also the Supreme Court has ruled in various judgments like Lata Singh v. Govt. State of UP (2006)[26], Safeen Six v. State of UP (2006)[27], Shakti Vahini v. Union of India (2018)[28] and Lakshmibai Chandrangi Vs. State of Karnataka (2021)[29] The choice of as a partner is a fundamental right under the Constitution.

Children
The most common argument against gay marriage is that India is a family-oriented society and gay couples cannot continue in the family because they cannot have their own adopted children in life good and legal and surrogate children are no different from biological children. But since marriage is illegal for gays and lesbians, it has become nearly impossible to maintain a family. The laws governing adoption, surrogacy, and co-parenting are limited to married couples. In India – Surrogacy Act 2021[30] qualifies prospective surrogate parents. By law, couples who want to be married must be legally married and meet a certain minimum age. India prohibits arranged births for single men or heterosexual couples. However, the five justices ruled 3:2 against the adoption rights of the LGBTQIA++ community.

While the CJI and Justice Sanjay Kishan Kaul opined that queer couples should be given the right to adopt, Justices Ravindra Bhat, Hima Kohli and P S Narasimha disagreed. "The law fails to assess good or bad parenting based on an individual's sexuality. Such a view gives rise to sexually based stereotypes (that only gay men are good parents and all other parents are bad), prohibited by Article 15 of the Constitution continues." the CJI said." He submitted that Rule 5(3)[31] reads down without the word "marriage".

"It is clear that 'married couples' referred to in Rule 5 include both married and unmarried couples, including queer couples." Since there is no special relationship law regarding custody of children arising out of such relationships, the law decides to provide protection to the children and hence Section 125 of the CRPC[32] was enacted will provide for all children who cannot afford treatment on their own terms. Another argument from the defendants in the Supriyo (same-sex marriage) case[33] was how they defined the relationship between two children in a same-sex marriage. Like whole blood or half-blood?

In the UK, according to The Inheritance (Provision for Family and Dependants) Act 1975, non-parent children can claim a allowance from the deceased's estate if they lived with the deceased for at least two years, before they passed , and were treated as children of the deceased even if they were not and before their death the deceased held all or part of them. It is much easier to have children as a gay couple in the UK than in India.

Financial benefits
Married couples enjoy many financial benefits such as the Indian income tax law which allows a maximum tax deduction of ₹25,000 per annum as per Section 80(D)[34] for health insurance premiums. This scenario is only true in the case, only one of the spouses is a taxpaying member of the family. There are also many tax advantages to getting a home loan, if you and your spouse are individual taxpayers you can get double tax benefits if you borrow your home jointly on a 50:50 basis. First, under Section 80(C)[35] of the Income Tax Act, individuals are given a tax credit of ₹1, 50,000 to repay the basic home loan every year.

If both partners are taxpayers and joint borrowers in a 50-50 partnership, this benefit can double to ₹3, 00,000 per annum. High prices make children's education a costly endeavor in the long run. This is another area where you can again save tax thanks to Section 80(c) of the ICT Act. As mentioned earlier, the maximum deduction available under this section is ₹1,50,000, and can be claimed in several instances, so if both partners are taxable, they are 80(C ) to ₹ 3,00,0 In the UK, married couples also benefit from not having to pay inheritance tax.

For example, if a spouse dies and leaves all his or her assets to another, any income and property can be claimed with no tax consequences The surviving spouse receives the entire estate if it is worth £322,000 or what less than that a. For an estate of more than £322,000, the spouse gets £322,000 plus half of the balance, and the children get the other half. The Matrimonial Benefit also helps couples where one spouse is a non-taxpayer and the other is a primary taxpayer.

Role of Media
The media is a big player in every country. Books are the mirror of society. The LGBTQIA+ community has always been misrepresented and stereotyped for their identity, limited number of jobs, typecasting some actors to be gay male and trans female India has actually proven to be progressive and willing to it will change society when The Press Council of India Media guidelines covering the media were released.

The guidelines include being sensitive to one's class, race, religion, ethnicity, and other social markers when reporting on one's life, not identifying marginalized communities as 'victims', avoiding 'Saviors.' Syndrome', with comments 'from the top down' coupled with a "we have to save them" tone, if you are a beat reporter, insists on seeing your story playback to ensure the desk falls on political issues some realistically, the stock images used for articles and news pieces about LGBTQIA+ issues should be varied of our lives And be representative of lived reality, rather than taking pictures from peoples social media accounts if you know they identify as LGBTQIA+.

They may not feel safe expressing their gender expression, sexual orientation or sexual identity and presenting it to a larger audience. Even when those who have "come out" only feel safe about it in certain contexts and situations, avoiding headlines like "She Was Not Ashamed of Her Lesbianism" by labeling something as an 'ism' shrinks to become fashionable or trendy rather than personality, "gay". is to be careful in using the term, using the more appropriate "sex-assignment surgery (GAS)" rather than "sex reassignment surgery" or "surgical change sex" will be used, not "surgery" and "surgery implied " The should not use term "alleged" when describing LGBTQIA+ identities and relationships.

The United Kingdom National Press Association also issued a series of guidelines that included things like trying to avoid political acronyms like "gay agenda," "lesbian agenda," or "LGBT agenda," like "transgender," a term used to describe gays and lesbians. is not meant to be used as a noun and always refers to the transgender person's choice of name when making a request, and ask them what individual pronoun they prefer to describe themselves.

Conclusion
A country like India, which functions like the largest democracy in the world, is supposed to promote equality. Don't let the feelings and opinions of the "majority" get in the way of the basic rights of the "minority". The relationships that the author found while doing research for this article are not just civil unions, they have to be recognized as "couples" in the eyes of not only society but also the law because India decided at the beginning to follow scientific common sense it is outside of any tradition, and not for stereotype-bias based reasons.

Why follow Victorian ideals that even the British have now left behind? People who harm someone in the community should not have to face legal challenges like the ones described here. A sense of community can truly exist in a society only if we accept each community member as he or she is. Treating people of different sexual orientations will be like treating people of different colors and ethnicities differently. The United Kingdom also has a long way to go when it comes to rooting out prejudice in people's hearts, conservative media, and fostering conservative values in spiritual and personal matters.

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