In Navtej Singh Johar v. Union of India
, 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 of the Indian Penal
Code, 1860 (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
 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 (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. The term 'person' used under these provisions
has a wide connotation as per the definition laid down under the General Clauses
Act, 1897. 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. 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.
Recently the Honourable Supreme Court vide its judgment in Navtej Singh Johar v.
Union of India 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.
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
- (2018) 10 SCC 1
- 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.
- The Indian Penal Code, 1860, No. 45, Acts of British India, 1860
- Supra Note 1.
- The Hindu Succession Act, 1956, No. 30, Acts of Parliament, 1956
- The Hindu Succession Act, 1956, ss. 24-26.
- The General Clauses Act, 1897, s. 3(42).
- AIR 2014 SC 1863.
- Supra Note 1.