Prof. Tiju Thomas

Permitting a registered ‘deed of familial association (DFA)’, drawing from ‘Indian Contract Law’ and ‘right to life’ would aid legitimization of LGBT+ families.

Despite progress in Indian queer rights jurisprudence, the ground reality is that explicit legal protections from harassment or discrimination do not exist for same-sex partnerships, and other similar non-conformist families. Given extant objections to amendments to the ‘marriage law’ to accommodate such families, it is proposed that a timely solution would involve recognizing non-conforming households via a ‘deed of familial association (DFA)’, in keeping with a contextual interpretation of the Indian Contract Law (1872) and the accepted constituents of the personal freedom and dignity.

DFA would allow same-sex and other currently non-conformist families to register their commitments arising out of natural affection, under the aegis of an extant framework, in a manner that would affirm their personal dignity and that of their chosen human bond(s). It would also allow protections through application of tort law (intentional tort, in particular), for ill-intentioned persons who may wish to harm the integrity of the freely formed ‘familial association’ legitimized via DFA.  

LGBT+ persons and families they find 

The current marriage laws draw entirely upon heteronormative standards and a long tradition which does not accommodate gender and sexual minorities, their chosen partners, and the families they found. Neither does the current law offer provisions to recognize stable LGBT+ family units, which may be “non spousal”, but based on natural and abiding bonds of care and loyalty that come about among persons who live together. The deep familial bonds they share could be, among other factors, due to their common state of being a natural minority, and hence, their need for mutual support, amidst social disavowal. [1]

I use the word family here to mean the commonly held understanding – all persons who live in the same household, forming an economic and social unit. To its credit, Indian jurisprudence is certainly evolving to accommodate such social realities. For instance, the case of Chinmayee Jena @ Sonu Krishna Jena v The State of Odisha [WP(Cr) No. 57/2020: 2020 SCC OnLine Ori 602], involved a trans-man and a woman who were in a sustained live-in relationship. The case entailed proceedings set in motion due to the habeas corpus filed by the trans-man, due to the woman being taken away for purposes of her being married off forcibly by her family. The Odisha court responded in the spirit of the NALSA judgment, and allowed the petition.

One of the key features of the ruling was the explicit value the court assigned to the trans-man’s self-identification (validated via psychological assessment) during the proceedings. Arguably, this is an intrinsic good that came out of the proceedings and sets the right precedence concerning the way by which the justice system must encounter the existential and intersectional complexities of the LGBT+ identities. This attention that the court has paid to self-identity and self-expression is, in fact, consistent with the constitutional doctrine of ‘right to live with dignity’ (Article 21, Constitution of India), interpreted to encompass all that is included in ensuring that a person’s life meaningful, complete, and worth living. The Odisha court’s approach to accepting self-expression and self-identity as a critical input in the proceedings arguably shows a way by which structures of political economy of exclusion of LGBT+ people can be overcome by placing an emphasis on scientifically validated and individuated ‘self-expression’. The Odisha court while drawing from the NALSA judgment, has also set a precedence regarding certain procedural and practical ways forward in addressing LGBT+ persons and their familial relationships.

Notably, NALSA also sets the tone for ‘state governments to develop mechanisms to realise the rights of “third gender”/transgender persons’ (AIR 2014 SC 1863).  Certain ingredients towards this are in place in our current legal framework, but significant work towards due interpretation and application remains. For instance, the case has already recognised that third gender persons are entitled to fundamental rights under the Constitution and International law. The jurisprudence that evolves thus, when duly interpreted, would uphold the rights of the full spectrum of the LGBT+ community. It would involve answering key issues like what ‘developing mechanisms to realize rights’ would mean? This would require a proper interpretation of what constitutes right to live. Here we recall the case of Francis Coralie Mullin vs The Administrator, Union … on 13 January, 1981 where the ‘right to live’ was interpreted:

“The right to live includes the right to live with human dignity and all that goes along with it, viz., the bare necessities of life such as adequate nutrition, clothing and shelter over the head and facilities for reading writing and expressing oneself in diverse forms, freely moving about and mixing and mingling with fellow human beings and must include the right to the basic necessities of life and also the right to carry on functions and activities as constituting the bare minimum expression of human self.”

‘Right to live’, thus, includes the ability to freely mix and mingle, and carry on functions and activities that constitute the ‘expression of the human self’. Given how central a family unity is to this ‘expression of the human self’, one may argue for the freedom to found a family of one’s own (regardless of gender or sexual orientation). This is, in fact, currently part of emerging legal consciousness as well as international law concerning private and family life. If this ingredient (i.e. the freedom to found a family of one’s own) is accounted for within the ‘right to life’, then a mere striking down of Section 377 alone is insufficient to render efficacious the ‘right to life’ of LGBTQ+ persons. Hence, there exists a real need for creating a ‘positive law framework’ where legal affirmation is made possible that aims at offering direct emotional relief and social standing for the minority LGBT+ families. Here I use ‘positive law’ to mean the establishment of specific (not ‘special’) rights for the LGBT+ individuals concerned.

Necessity of a Positive Law Approach

Positive law is a necessity since Chinamyee Jena’s recent case, and numerous such stories (including the author’s) offer evidence that such right to find a family of one’s own is indeed a challenge for the members of the LGBT+ community. This is especially so in wake of social norms and familial restrictions. Considering the vulnerability of people who form families with the LGBT+ people (such as the cis-woman who is partnered with Chinmayee), there is a need to have regulatory measures that can offer essential protections to the LGBT+ people and those who consent to form families with them. 

Evidently, (i) dignity of the human person, which the Supreme Court holds as a foundational constitutional value, and (ii) the ‘right to life’, in keeping with both the Constitution as well as the more recent and international Yogyakarta principles, offer robust foundations that can aid in understanding ways by which extant laws can be adapted (ideally at the earliest) to offer a legal standing for such families. Such interpretive instruments should not be thought of as a distant vision or a merely academic exercise. It is an imminent need considering that now there is a clear scientific affirmation that persons who are sexual minorities are every bit as natural as others. Furthermore, given the significant social, personal and emotional challenges faced by such families, a timely solution is called for. Clearly, all that constitutes the ‘right to life’ ought to be expediently made available to members of this section of the society. Justice ‘delayed’, which in this case would mean protections and essential affirmations denied, is not acceptable after all in matters of such gravity. We would do well to recall the maxim that ‘justice delayed is justice denied’. 

It may be noted that quick and expedient use of a legal instrument(s) may not always be balanced. Hence caution is to be exercised. Here comparative law can serve us well. An examination of precedents internationally will show that there have been critiques of both the American and Japanese legal and social models of LGBT+ rights. While the former is premised on the assimilationist interpretation of the ‘equal rights’ model, the latter draws forth from the idea of ‘special rights’ (we may call this ‘specialism’). While the former faces critique on the basis of its poor involvement with the complexities and variegated nature of LGBT+ lives, the latter too has raised concerns since a ‘special status’ given to a section of society that has poor social acceptance already could potentially make inclusion harder still.

Given the above, what is needed is a legal vehicle that does not suffer from the extremes of assimilationism or specialism concerning LGBT+ persons or their families, and which draws directly from the Indian legal framework, so that there is no need for substantial reorganization of existing laws. This would allow timely delivery of affirmation and protection to an unfortunately anxious section of the society and the families they have found. There is a need to affirm LGBT+ family units, and offer essential rights that flow therefrom.     

Deed of Familial Association (DFA)

It is in response to this need for familial recognition among LGBT+ persons, their partners, and others who choose to form or retain families with such persons, that a ‘deed of familial association (DFA)’ is proposed. If facilitated, and made amenable to registration, it could aid in social integration of LGBT+ members and their chosen family members, while also offering essential protections to the family units they found. DFA should have the following desirable features.  It must offer the partners, who have achieved the age of majority, and their chosen major family members a legal affirmation via the registration of the DFA, and offer deterrence to

(i) harassment or violence or ill-treatment by society or even the biological families (e.g. parents).

(ii) discrimination that can impact gainful employment, housing, and assimilation in society.

For completion, such a DFA may also contain responsibility and liability of each partner during co-living and also state terms of release from familial association.

While the Indian penal code already has provisions for all residents against harassment, nuisance and criminal intimidation in general [see IPC 294, 503, 506]; allowing the permission to register a contract between the partners, and their chosen family would directly help. This can be immediately enabled through a contextual interpretation of the Indian Contract Law (1872). We note that Section e in the Indian Contract Law defines agreements as “every promise and every set of promises, forming the consideration for each other is an agreement.” This ‘consideration’ for each other, flowing from natural affection that the parties share can be explicitly stated in the deed. Such a deed may even layout that the familial association will involve shared life and household, and some form of joint economic and social direction of the household.

Just permitting such a ‘deed of familial association (DFA)’ would allow family units of LGBT+ people to become a legitimate and positively affirmed unit within the existing social fabric. Further, those who challenge any ‘DFA’ ought to take upon a heavy burden of proof consonant with Section 114 of the Evidence Act, 1872. Additionally, tort law may be invoked in cases where there is grievous injury intended towards the integrity of the family unit formed by LGBT+ persons via the DFA.

Theorizing About DFA and Comparison With Existing Proposals

In allowing a DFA, the justice system would operate in consonance with the precedence set by Anuj Garg v Hotel Association of India [(2008) 3 SCC 1], where both a negative and a positive right were identified: societal interference in individual autonomy was deemed inappropriate and the State was instructed to secure equal opportunities in the realization of such autonomy. Furthermore, Shakti Vahini v Union of India [(2018) 7 SCC 192] solidifies the Court’s recognition of individual autonomy and also deems interference in an individual’s associations unconstitutional.

Also from a theoretical standpoint, such as approach would not suffer from the American model’s assimilationism, wherein the particular and even important realities of LGBT+ people may not be affirmed or engaged with comprehensively. We note that such engagement with particular realities is essential to true inclusion, which simply flows from the fact that LGBT+ persons are also equal in the eyes of the law.

Likewise, DFA would not suffer from the Japanese model’s weakness that comes from an emphasis on ‘special rights’ for a disadvantaged lot. The DFA by its nature would allow the identification of the elements that can reflect the particularities of the family unit under consideration. The clauses in the DFA could ensure that there is a balance of duties the family members have towards each other, thus normalizing their association through structure, function, economy and even moral or conduct clauses; thus bringing about the likeness of a family from the society’s standpoint. Furthermore, the deed itself could aid the family unit gain significant stabilization, through the explicit identification and definition of their unifying principles. The clauses could be drafted using scientifically validated guidelines from human sciences (e.g. psychology) so as to build in factors that can aid in bringing about further stabilization in the DFA-enabled family unit. 

The DFA approach is moderate in that it does not require a radical revisiting or reorganization or reinterpretation of existing law concerning marriage, while at the same time, it does offer a serious engagement between the state (via the deed and the registration process) and the particularities of individuals in a family unit (via self-determination, and structural and functional clauses of the DFA).  

The specialized and personalized nature of DFA would hence help overcome the usual challenges posed by solutions that are currently being pursued by those engaging with the law for LGBT+ inclusion. Such solutions – e.g. same-sex marriage, and more rarely ‘marriage for none’ – seek a significant reorganization or reinterpretation of law, and perhaps creation of new law(s) with significant impact on existing legal, social and economic order. These, however, are not expedient given the prevailing societal reality, and hence, cannot offer immediate relief to LGBT+ Indian families.

Further elaboration on alternate proposals is perhaps required. The proposals (same-sex marriage and ‘marriage for none’) are not without problems. The diligent jurist can see that ‘same-sex marriage’ still would potentially exclude those who are gender non-conforming (say those that have fluid or undefined genders, those who are intersex by birth, and those who are asexual). Furthermore, same-sex marriage requires a significant amendment of current law, and all related laws thus. This, hence, in the Indian situation would not be an immediate or practical relief.  

Likewise ‘marriage for none’ has no legal precedence anywhere! This is one reason why very few argue along these lines. It is also unclear how it would offer protections the kind that LGBT+ families need. Furthermore, proposals such as ‘marriage for none’ do little justice to the majority who may legitimately and rightfully desire a marriage to organize their lives. From the standpoint of jurisprudence it is apparent that such proposals would not likely offer a means to a practical, immediate and expedient legal construct that is viable and at the concurrent with the legal precedence in India. Hence, obstacles that are arguably and even imminently present in case of alternate proposals – namely same-sex marriage and ‘marriage for none’ – are bypassed via the allowance of DFA.

Allowance of DFA as an Enabling Move Beyond Section 377

It is time to go beyond the reading down of Section 377 of the Indian Penal Code, and bring about substantive reform in the civil rights of queer persons and the families they found. This requires not just a statement of tolerance, but an approach that offers affirmation, and even due protections, considering that this section of our society is indeed a minority, with very little societal acceptance extended to them currently. Needless to say, positive legal and legislative steps are a humanitarian and urgent need. It is in this context that this proposal on ‘Deed of Familial Association (DFA)’ has been made, since it bears the potential of offering a quick relief and a step in the right direction, consistent with the dignity-orientation of Indian judicial system.

[1] Milton, C. (2020). The buffering effect of chosen family networks in LGBT adults <https://search.proquest.com/dissertations-theses/buffering-effect-chosen-family-networks-lgbt/docview/2437348801/se-2?accountid=170785>

The author is an engineering faculty in the Indian Institute of Technology Madras. This article is inspired by his own personal struggles to have an affirmed and undisturbed family life as a queer (gay) person who is partnered. He is available at tt332@cornell.edu and is happy to work with jurists and lawyers to enable viable and expedient solutions such as the ones presented in this work.   

The author expresses his gratitude to Prannv Dhawan for his constructive and clear editorial inputs which enriched this work significantly.

Image Credits: Rufino Uribe