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LGBTQ Community And Succession Laws In India

In Navtej Singh Johar v. Union of India[1], a Bench of the Honorable Supreme Court of India, headed by the former Chief Justice, Honorable Justice Dipak Misra, read down the colonial law of Section 377[2] of the Indian Penal Code, 1860[3] (hereinafter, 'the IPC') to the extent to which it hampered individual freedoms and rights of homosexuals in this country.

Sexual orientation varies from one individual to the other. A general rule can never be laid down. It's not always that a man is attracted to a woman or a woman is attracted to a man. Homosexuality though attracts a unique sexual orientation but is certainly not an offence. While most religions condemn it, a secular country is not expected to be driven by religious bindings while making secular laws. Thus, finally the Honorable Supreme Court in September 2018 vide its judgment in Navtej Singh Johar v. Union of India[4] struck down portions of Section 377 that criminalized consensual sexual relations between same-sex couples. Thus, the present law under Section 377 doesn't punish individuals for establishing consensual homosexual relations.

Succession laws in India and the LGBTQ community
The law of inheritance consists of rules which govern devolution of property on the death of an individual upon other persons solely on account of relationship of latter with the former.

The Indian succession laws are governed by the personal laws of the respective religious communities. All of these laws distinguish inheritors as per gender into two categories viz., Male and Female.

For instance, the Hindu Succession Act, 1956[5] (hereinafter, the 1956 Act or the Act of 1956) governs Hindus for the purposes of inheritance of both joint and separate property. The Act doesn't talk about transgender or any other person with a different sexual orientation. Generally transgender people recognise themselves as females and can claim rights only through that medium. This criteria of inheritance from family property is violative of Article 15 of the Indian Constitution that prohibits discrimination on grounds of sex.

Section 24 to Section 26 of the of the 1956 Act lay the grounds for disqualification of a person from inheritance and being a transgender is no ground for disqualification.[6] The term 'person' used under these provisions has a wide connotation as per the definition laid down under the General Clauses Act, 1897[7]. As per this provision it is not the case that the term person is referred to just male or female but includes within its ambit transgender as well. Therefore, disqualifying a transgender on the ground of their gender identity is not justified as per Section 28 of the 1956 Act.

Muslims are governed by their personal laws i.e. the Shariat for the purpose of succession. However, just like Hindus, Muslims also recognise male and females as subject matters of inheritance and this can be clearly understood from the terms used in the list of sharers.

Judicial pronouncements in India recognizing LGBTQ community and their rights

The Indian judiciary of lately has recognised rights of homosexuals, bringing them at par with others in the Indian Society.

The Supreme Court of India in National Legal Service Authority v. Union of India and Others.[8] gave the LGBTQ community the legal right of recognition and the status of 'Third Gender' Citizens of India. The court also held that “Hijras/Eunuchs, who also fall in that group, claim legal status as a third gender with all legal and constitutional protection.”[9]

Recently the Honourable Supreme Court vide its judgment in Navtej Singh Johar v. Union of India[10] recognizing the rights of the LGBTQ to lead a dignified life as per the provisions of Article 21 of the Constitution, read down the colonial law of Section 377 to extent to which it criminalized consensual sexual relations between LGBTQ couples.

Thus sexual orientation per se can no more be a ground for disqualification from succession rights and any such law which deprives a person from its right to inherent family property is violative of this judgment of the Apex court.

Conclusion
Thus it can be concluded that any person belonging to the LGBTQ community will have absolute right to inherit family property unless disqualified otherwise and being a member of the LGBTQ community itself will not disqualify them from inheritance.

End-Notes:
  1. (2018) 10 SCC 1
  2. 377. 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 ten years, and shall also be liable to fine.
    Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.
  3. The Indian Penal Code, 1860, No. 45, Acts of British India, 1860 (British India).
  4. Supra Note 1.
  5. The Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956 (India).
  6. The Hindu Succession Act, 1956, ss. 24-26.
  7. The General Clauses Act, 1897, s. 3(42).
  8. AIR 2014 SC 1863.
  9. Ibid.
  10. Supra Note 1.

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