‘Home’ has always been a contested space for queer individuals. It is often the seat of violence and abuse, and the global coronavirus pandemic with its message of ‘staying home’ has exposed the many challenges that are tucked away within this simple dictum. During the lockdown several reports highlighting the violence faced by queer persons from their families (marital and natal) have come to the forefront.
Being locked up with family members who do not accept, let alone affirm the identity of queer individuals can be detrimental to their physical and mental well-being. For some, this is in the form of cold, emotional disapproval and silence. For others, it results in constant fights and arguments and combating queerphobic remarks. Some have to try and resist everyday coercion to enter into arranged marriages against their will. In May this year, a young queer woman from Kerala died by suicide after being subjected to ‘conversion therapy’ when she came out to her family as a bisexual woman. This has exposed how privileged the discourse of ‘staying home’ truly is, given the lack of residential and economic alternatives for those within abusive familial environments.
A rapid survey series of seven states (Assam, Delhi, Jharkhand, Karnataka, Meghalaya, Nagaland and Tamil Nadu) undertaken by several community based organizations during the lockdown documented the catastrophic consequences of the lockdown due to increased domestic violence faced by both cisgender and transgender persons. Especially among transgender persons, there has been an increased surge of reports of mental and emotional abuse from the natal family. Many are not aware of government helpline numbers and where they did reach out to such services, they did not receive adequate help.
The pandemic has exposed the severe shortage of safe spaces, shelter homes and other functional services for those facing domestic violence. For members of the queer communities, this problem is worse since most available shelter homes have been created with cis-heterosexual women in mind and do not cater to the specific needs of queer persons (scroll down to the section on supportive services to access a fundraising initiative started by Nazariya for the creation of a shelter home for queer women and transgender persons in Delhi). But even in this bleak scenario, queer persons dealing with domestic violence may have some options to try out.
Dealing with coercion to get married
In a recent case in the South 24 Parganas district of West Bengal, NV, a transgender man, and TS, his cisgender girl friend, used to cohabit in a rented house. When the lockdown was imposed, they shifted back with their respective natal families. Eventually, TS’s family came to learn about her relationship with NV and began threatening to marry her off if she did not end her relationship. TS’s family also threatened NV. Both fled from their respective homes and fortunately for them, the local Superintendent of Police sheltered them for a few days.
The couple have now moved back to their earlier rented accommodation but have no access to financial resources and are struggling economically. Families tend to maintain a strict control over financial and material resources which prevents queer persons from having any kind of autonomy. In fact, this is one of the major ways in which control is exercised over people assigned female at birth.
What legal options are available to NV and TS?
The Protection of Women from Domestic Violence Act (PWDVA) can be used by cisgender queer women like TS against their family members (any family member, irrespective of gender) for any kind of verbal, physical, economic, sexual and emotional abuse they go through. They have a right to reside in a shared household under this law even if they have no right, title or beneficial interest in the property. Under this Act, TS can file for protection orders, residence orders, various kinds of monetary relief, compensation orders, and custody orders.
Further, if TS files a case against a family member, the magistrate will be empowered to grant both interim and ex-parte orders. This means that even if the respondent (TS’s family member against whom the complaint has been filed) does not show up in court, the magistrate, if satisfied that there is a genuine case of domestic violence, can grant temporary relief to TS even before the final case is disposed of.
The first point of contact for reporting the violence can be either the local police station, the District Protection Officer (DPO) or a local NGO. The violence can be reported by the DPO, the NGO or any other person acting on behalf of the complainant.
In NV and TS’s case, however, more than legal remedies, the need for financial resources and safe spaces for queer persons escaping domestic abuse comes through the most.
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In the Nadia district of West Bengal, two cisgender queer women, SP and MS, who were in a relationship with each other, were married off against their will. Both have faced harassment and abuse from their husbands and in-laws. When MS’s husband came to know about her identity and her relationship with SP, the abuse only intensified. Despite having fled from her marital household and filed for divorce, MS has not received any substantial alimony. SP too was tortured and sexually abused by her husband and his family. After a year of such abuse, she too fled her marital home and returned to her natal family.
Meanwhile MS’s parents have intensified their search for another male partner so that they can get MS married off quickly, again against her will. They have also forced her to severe contacts with SP. Because of the lockdown, SP and MS are not able to be in touch with one another or find any means of resisting MS’s family pressure to get married. The multiple marginalities of being a queer person assigned female at birth, their location in a remote area in West Bengal, and the pandemic have restricted their access to financial, educational and economic opportunities and safe residential spaces.
What legal options are available to SP and MS?
Apart from using the PWDVA, there are some other legal remedies that lawyers prefer in such situations. Where a woman is being held against her will and is being denied access to her friends, support structures and the outside world, any person can file an FIR with the local police station against the wrongful acts. Not only the woman going through such abuse but also her friends or NGO workers can file a criminal complaint on behalf of the woman.
Provisions on hurt and grievous hurt (Sections 319-326, Indian Penal Code), force or assault (Sections 349-352), attempting to wrongfully confine a person (Section 357), wrongful restraint (Section 339), and wrongful confinement (Section 346) can be deployed in situations of escalating violence. These provisions are gender neutral (thus cisgender gay or bisexual men, transgender women and transgender men can also make use of them in situations of domestic violence). Filing an FIR creates evidence of abusive behaviour.
Often, where individuals have been subjected to house arrest for instance, lawyers prefer to frame the issue as illegal detention and seek a remedy such as habeas corpus. Habeas corpus literally means ‘produce the body’ and is a form of protection guaranteed in the Constitution whereby any person who is missing or illegally detained has to be produced before the court. These writs of habeas corpus can therefore be filed directly before a High Court or the Supreme Court to demand the immediate release of a person who is being wrongfully confined or held against their wish.
There is precedence of this mechanism being used for queer individuals. For instance, in 2015, the Delhi High Court heard and passed appropriate orders in the case of Shivy, a transgender man who had been detained by his family against his wishes.
Other High Courts, especially after the 2018 decriminalization of queer people by the Supreme Court, have also granted orders recognizing cohabitation between two same-sex adults (read verdicts by Calcutta, Uttarakhand and Odisha High Courts), and in some cases directing police officials to look into the request of the petitioners for security and protection. In such cases, it is preferable that the person leaving their house records a statement under Section 164 of the Criminal Procedural Code, 1973 or prepares an affidavit stating that they are adult individuals who wish to leave their parental household of their own volition and reside with their partner (whether same-sex, transgender or anyone else).
Often the threat of legal action can itself be a way to prevent or reduce the violence and therefore sending legal notices can also be a good strategy to get families (natal or marital) to stop the violence.
Dealing with ‘conversion therapy’
Queer persons continue to be threatened with and in some cases actually subjected to inhuman ‘conversion therapy’, which is supposed to ‘cure’ queer people and ‘normalize’ their gender and/or sexuality. Many queer persons assigned female at birth who have been married off to male partners are likely to face abuse from their marital families. Violence can be particularly severe in cases where the husband and his family are aware that the person is lesbian, bisexual, transgender or genderqueer.
‘Conversion therapy’ has not been specifically outlawed in India. However, some legal remedies against such a practice can be explored in the form of filing a case alleging medical negligence against the doctor or practitioner concerned and seeking monetary compensation (civil liability).
For criminal reliefs, Section 319 (hurt) and Section 336 (endangering the life and personal safety of others) of the Indian Penal Code (IPC) may be used. ‘Hurt’ will include any mental or emotional damage or abuse. Where such so called ‘conversion therapy’ has resulted in death through suicide, a case of criminal negligence under Section 304-A, IPC can also be registered. Read also article Challenging Queer ‘Cures’ published in Varta in June 2015.
What can a transgender person worried about eviction from their natal family household, do?
The newly drafted Transgender Persons (Protection of Rights) Act, 2019 can come in handy in such situations. Section 12 of the Act provides transgender persons with the right to residence. Any person who holds a certificate of identification as a transgender person can avail of this right. As per this section, a transgender person has a right to reside in a household with their parent or immediate family members and has a right to not be excluded from such a house or be discriminated against in any manner while using the facilities of the house. However, the rules and regulations under the Act that spell out how the transgender certification must be obtained are yet to come into force. It is also not clear whether the legal gender identity change many transgender persons have already undergone prior to the new Act coming into existence will now be valid or not.
Barriers within the law
Laws such as the PWDVA meant to combat domestic abuse do not cover same-sex relationships or recognize those outside the gender binary. Further, whether transgender women fall under the ambit of this Act has not yet been tested judicially. Transgender men will also be left without any remedies under the Act, unless the definition of ‘aggrieved person’ changes. Currently only cisgender women can be considered as ‘aggrieved persons’ under the Act.
In addition to this the amount of time it takes to get remedies under the PWDVA is a big deterrent for its usage. Though cases under this law are supposed to be disposed of within a period of 60 days, this rarely happens. Though the Act is well drafted, it has been poorly implemented. The court processes move slowly and can drag on for years. There are inadequate service providers at each level. Services specifically for those within the queer communities are lacking and many ‘women-only’ spaces are reluctant to include transgender persons. They often do not know how to respond to queer persons facing abuse.
Another layer of exclusion is enforced by the Transgender Persons (Protection of Rights) Act. Under this Act, in order to identify as a ‘woman’ or ‘man’, a person holding a transgender certificate will also have to undergo gender affirmative surgery to be identified within the gender binary (that is, as a ‘woman’ or a ‘man’). This will leave many persons who have not undergone or do not want to undergo surgery, vulnerable and without protection under the PWDVA.
Finally, while provisions of the IPC can be deployed in situations of escalating violence since they are gender neutral, in practice, the attitude and awareness of the police officials determines how such cases are treated.
Some supportive services
The Varta online locator on health care and legal aid service providers includes the contact information for a number of queer-friendly lawyers. In addition, please visit this link for information about non-government agencies providing information and support on gender, sexuality and a range of associated issues. Among them is Sappho for Equality, Kolkata, a support forum for lesbians, bisexual women and transgender men living in West Bengal and other states of eastern India; Amitie’ Trust, Belur, a queer support forum that operates in the Hooghly and Howrah districts of West Bengal; Orinam, Chennai, which provides legal aid and crisis intervention support to queer persons and their families in Tamil Nadu and other southern states; and Xomonnoy, Guwahati, which provides similar support across the north-eastern region.
For Delhi and other northern states, Nazariya, a queer-feminist resource group, can be accessed for support in matters of domestic violence. Based on past experience and motivated by the crises during the lockdown, they have started a unique fundraising initiative for the creation of a safe home for queer women and transgender persons in Delhi. The link to the initiative on the Milaap crowdfunding site can be accessed here.
In Kolkata, Swayam is an NGO dedicated to providing support to women who experience domestic violence. Swayam has several support centres and runs a helpline for survivors of domestic / sexual violence daily from 10 am to 2 pm at 0091 98307 72814. Their counsellors are fluent in Bengali, Hindi and English. Swayam also publishes resource directories, which include information about shelter homes.
A queer-friendly helpline that operates at the national level is the iCALL Psychosocial Helpline. The National Repository of Information for Women also has a list of helplines for women experiencing domestic abuse – click here.
Main graphic credit: Pawan Dhall