The Pot of Tar at the End of the Rainbow: An Analysis of India’s Hollow Legal Protection to Same-Sex Live-In Couples

The historic judgement in the case of Navtej Singh Johar v. UOI, decriminalized homosexuality in India, bolstered on the fundamental right of equality, right to life and liberty and freedom of expression. Although the legal battle affording the fundamental right of civil union remains a distant dream for the LGBTQ+ community, the courts in India through multiple recent judicial pronouncements have upheld the legality of same-sex live-in relationships in India. This is the closest same-sex couples can currently get to a civil union in India. Unfortunately, the legal rights accorded in live-in-relationships are haunted by the specter of heterosexism. The progressive Domestic Violence Act, 2005 provides no protection for lesbian live-in couples. There is no pre-existing framework of legal protection which grants legal protection to same-sex partners taking into account their domestic relationship. Maintenance rights which are primarily encompassed by Sec. 125 of the CrPC do not envisage same-sex live-in partners under this protective legal umbrella. Furthermore, same-sex live-in couples are precluded from adopting a child as a couple owing to the pre-existing legislative framework being extremely heteronormative. Surrogacy becomes equally complicated and only one of the two partners can be accorded the legal parenthood for same-sex couples. This further delineates the lack of actual legal protection and social rights which same-sex live-in couples possess in India when compared to heterosexual live-in couples. Unfortunately, when the basis of legal protection to heterosexual live-in couples is founded in their relationships’ comparability to a marriage and same-sex civil unions being unrecognized in India, there exists a loophole in providing legal protection and the recognition of same-sex live-in relationships becomes a mere tokenistic acknowledgement for the LGBTQ+ community in India. It is the need of the hour to not only acknowledge these blatant differences but also ensure that the fundamental rights of the LGBTQ+ community in India is upheld and secured.