Explainer: Why should ‘husband’ and ‘wife’ be replaced by ‘spouse’ in marriage related laws?

Kartavi Satyarthi, Rakshita Goyal and Namrata MukherjeeNew Delhi: By using the word ‘spouse’ in the law instead of ‘husband’ and ‘wife’, it can be applied to everyone. In fact, in view of the discrimination against people of the LGBTQIA+ community, the discussion on the word ‘life partner’ has intensified. The Supreme Court has said that people of the LGBTQIA+ community should not be discriminated against. The government will have to take steps in this regard. The court has asked to form a committee which will find a solution to this problem. Due to Supreme Court decisions, people from the LGBTQIA+ community can make their partner a nominee while opening bank accounts. They are also protected from discrimination in health care. Still, much remains to be done. The Supreme Court case ‘Supriyo vs Union of India’ is an important step towards providing legal protection to the LGBTQIA+ community.

The Supreme Court has said that it is the duty of the government to remove discrimination against the LGBTQIA+ community. The court has directed the Central Government to form a high level committee to study the issue and suggest solutions. Although access to goods and services is being made easier for same-sex couples, some important steps still need to be taken.

benefits related to relationships

Marriage provides many rights and facilities. These include alimony, inheritance, making healthcare decisions, joint loan applications, and enrolling for benefits such as insurance. Homosexual people are deprived of these rights because the law does not recognize their relationships.

What steps have been taken?

• Bank Accounts: The Department of Financial Services has issued a circular. It has been clarified that there is no bar on same-sex couples opening joint bank accounts. People in a ‘homosexual relationship’ can nominate their partner to receive the amount deposited in their account after their death.
• Ration Card: In an advisory issued by the Food and Public Distribution Department, it has been clarified that for the purpose of ration card, people living in same-sex relationships will be considered as part of the same household. States and Union Territories have been directed to take steps to ensure that there is no discrimination against same-sex couples in issuing ration cards.
• Family Agreement: The draft Tamil Nadu gender and sexual minorities policy provides for legal recognition of same-sex relationships through family agreement. However, this law has not yet come into force.

Why is this change necessary?

Amendment to the Special Marriage Act, 1954: This act was created to recognize inter-religious marriages of heterosexual couples. Experts say the inter-religious marriage law could be changed to include gay couples as well. This law currently only recognizes marriages between men and women of different religions. In this law, by using the word ‘life partner’ instead of ‘husband’ and ‘wife’, it can be applied to everyone. Along with this, there should also be provision of financial help for all couples without any discrimination. While deciding this, the court should also pay attention to factors like household chores, because women often do the household work and they need financial help. The provisions referring to ‘husband’ or ‘wife’ should be amended to gender-neutral ‘life partner’ by changing the law. Besides, it should also be clear in the law as to what factors financial assistance will be given keeping in mind, such as the value of household chores.

Recognition of civil associations: Despite advice about joint bank accounts and ration cards, a big question remains: how will the state decide who is in a ‘gay relationship’? Will it be based on self-declaration? Or will the concerned authorities investigate the existence of such relationship in each case? Legislation recognizing and regulating civil unions would respond to this. While benefits can be provided to same-sex partners in non-marital relationships through partial amendments to various benefit laws, a composite law will ensure smooth implementation and clarity and help avoid exploitation.

A law on civil unions should state the following:

• Who can enter into civil unions (for example, people over the age of 18, regardless of gender).
• Features of such civil associations
• A procedure for the registration or declaration of such associations as well as their dissolution
• Rights derived from such union, such as adoption and inheritance

Countries around the world have taken a progressive approach to recognizing same-sex relationships. The UK allowed same-sex couples to enter into civil partnerships prior to the enactment of the Marriage (Gay Couples) Act, 2013. In Canada, prior to nationwide recognition of same-sex marriage in 2005, various states and provinces progressively recognized and regulated civil unions.

Recognition through nomination

The gay community has demanded that people should be allowed to nominate any person of their choice as their next of kin for purposes ranging from healthcare decisions and bank account nominations to the execution of their estate after death . They believe that the choice of such a person should not be limited to birth family members, marital family members, or partners in civil unions.

access to goods and services

Gay individuals often find themselves struggling to access basic amenities and goods, whether alone or as part of a relationship. This includes lack of access to housing, education and employment. For example, there is a frustrating stigma associated with accessing rental properties because most landlords or neighbors prefer traditional families. Similarly, homosexual individuals are generally vulnerable to extreme harassment, bullying, isolation, and prejudicial behavior in workplaces and educational institutions. Therefore, legislative and executive measures will be required to ensure access to goods and services.

What steps have been taken?

• Health Care: Directs state health departments to eliminate discrimination faced by homosexual persons in accessing health care.
• Transgender Rights Act: Transgender persons are covered under the Transgender Persons (Protection of Rights) Act, 2019, which prohibits discrimination in matters of education, employment, healthcare, movement, accommodation, holding public or private office and access to care or custody. Prohibits.

What needs to be done?

• The Transgender Rights Act only prohibits discrimination against transgender individuals. A comprehensive anti-discrimination law that prohibits private and public discrimination, including on the basis of sexual orientation, is the need of the hour.
• The Transgender Rights Act does not provide effective remedies against discrimination by private parties. This can be addressed by providing an accessible grievance redressal mechanism.
• Affirmative action in the form of reservations corrects historical and continuing discrimination against marginalized groups. The SC had directed the government to provide reservation to transgender persons in matters of public employment and education. The Transgender Act provides for reservation, and it is important to introduce it.
• There is a strong need for gay-inclusive old age care facilities as many gay persons face rejection from their birth families and their livelihoods are uncertain. Implementing policies that provide a discrimination-free environment for gay persons in old age homes can go a long way in this regard.

What is the way forward?

• In October 2023, the SC delivered its verdict in the case of Supriya Chakraborty and others vs Union of India. A Constitution bench led by CJI DY Chandrachud said it was the legislature’s prerogative to enable marriage equality. It directed that a high-level committee be constituted to examine measures to secure the rights of persons in homosexual relationships.
• In the context of the landmark judgment, the Department of Financial Services issued an advisory on August 28 this year clarifying, inter alia, that there is no restriction on homosexual persons jointly opening bank accounts. The Department of Social Justice followed it up with a list of interim measures taken by the central government and invited suggestions from the public on further measures.
• These were the first significant steps taken by the government to address the discrimination faced by homosexual persons due to non-recognition.
• The Vidhi Center for Legal Policy has been working extensively on gay rights since 2016 and has made detailed submissions to the Expert Committee constituted in pursuance of the Supriyo judgment to explain how to achieve rights and protections for gay persons Could.

(The author is associated with Vidhi Center for Legal Policy)