Rainbow is turning grey - how LGBTQ community can get legal assistance support

Rainbow is turning grey - How LGBTQ community can get legal assistance and support

The country we live in has a history of valor and countless examples of protecting the weaker section of society, what we don’t know is such protection and success stories have unheard painful episodes.

While women in our country are still battling to overcome domestic abuse and violence from intimate partners, the LGBTQ community is more vulnerable. Thankfully the “Protection of Women from Domestic Violence Act, 2005” comes to the rescue.

As a practicing Lawyer in Bangalore, with over 15 years of experience and expertise in Family Law and Criminal Defense, I have observed many gaps in this area and there is a lot more work that needs to be done to support the victims of abuse in the LGBTQ community. On 6 September 2018, the Court ruled unanimously in “Navtej Singh Johar v. Union of India” that Section 377 was unconstitutional "in so far as it criminalizes consensual sexual conduct between adults of the same sex". We await a similar landmark judgment to amend the existing act and protect the minority community by drawing additional sections or perhaps renaming it to “Protection of Women and LGBTQ from Intimate Partner Violence”. The day is not far from such judgment to come. Meanwhile, the victims of the LGBTQ community can seek relief not only through this act but also from various other sections as in the Indian Penal Code (IPC) and the Articles of the Constitution of India that violates their rights.

Section 2(a) of the Protection of Women from Domestic Violence Act,2005, “aggrieved person” means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent; As a Lawyer in Bangalore, at least for the aggrieved LGBTQ community, I argue this definition of the act can include and extend to the LGBTQ community, such precedence can be drawn from various judgments from both the Hon’ble High courts and the Supreme court of India.

Further ray of home for the LGBTQ community who is subjected to violence comes from this act which defines the ambit of Relationship Section 2(f) “domestic relationship” means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a

joint family; The victim who is suffered discrimination, insult, violence, harm, injury, and abuse (Physical, Verbal, Financial, Sexual, etc…) from Parents, Friends, Employers, and Society at large where a relationship exists and if proven can get relief in the form of Protection Order, Financial compensation and Residence Orders.

The Magistrate can further order the accused to execute a bond, with or without sureties, for preventing the commission of any act of violence. Monitory relief may include where the victim is compensated by the accused for Loss of earnings, Medical Expenses, Loss caused due to damage or removal of the property and a maintenance order can be passed.

In some cases, if the Victim from the LGBTQ community is a minor who is subjected to violence from a family member can be granted temporary custody to the person making the application on their behalf.

Further, the aggrieved person need not wait for the case to complete, an interim and ex- parte order can be sought and if the Magistrate is satisfied that an application prima facie discloses that the respondent is committing or has committed an act of violence and the rights are infringed or that there is a likelihood that the respondent may commit an act of violence, he may grant an ex parte order in the favor of the victim.

A very important point, I can vouch with my 15 years of practice as a Lawyer in Bangalore, while proofs and evidence are important, in the matters of intimate partner violence, upon the sole testimony of the aggrieved person, the court may conclude that an offense under sub-section (1) of section 31 has been committed by the accused.

What are the types of Violence the LGBTQ community is subjected to?

LGBTQ community suffers more violence than the NON-LGBTQ community, such violence can extend from victimization including forced sexual activity without consent, sexual assault, blackmail, extortion, bullying, intimidation, and assault to name a few. A few examples I can quote from my experience interacting with clients are: Forcing the person to attend conversion therapy, subjecting them to medication, and seeking help from astrologers/occultists and non-certified medical practitioners or alternative therapists.

Forced by parents to get married with an assumption that after marriage the orientation will change.

In an intimate relationship, victimized by the partner capturing the nude photographs/videos and

subjected to blackmail and extortion. This was the case where the person although married developed an attraction towards same-sex relationships and was blackmailed by the partner to expose his orientation to his family, to keep it a secret he was financially abused.

Forced to perform activities against their interest by the intimate partner, being bullied/harassed, and troubled. Although both are of the same orientation, the dominant partner displayed vehemence and turned abusive.

Solicitation sexual favors in exchange of business and work. Unfortunately, the POSH Act protects women and it should extend to this section of the community too.

Restrained from meeting the partner, telephone and access to the outer world were completely cut off, being locked in the room by the parents.

Subjecting the victim to continue the married relationship and not signing the divorce papers, just to save the family prestige, after knowing the orientation.

Victims are disowned by their parents and their rights to ancestral property are violated.

In a recent case I am representing the victim, on threw light on the human trafficking element, especially in Bangladesh few people are trafficked and are victims who suffer pain beyond words that can explain.

The victims' rights are infringed and suffer sexually transmitted diseases too.

There were a few of many such examples, overall, the LGBTQ community is subject to similar prejudices and is victimized. The challenges exponentially grew because the people from this community suffer low self-esteem and are unable to stand up for their rights, they shy away to open up and seek legal advice as they fear being branded by society. They suffer mental health issues such as depression or self-harm followed by suicidal thoughts.