How can LGBTQ community get Right Legal Assistance and Support - Rainbow is turning Grey

lawyersonia@gmail.com | 9845944896 | LGBTQ Rights - Counselling and Legal Advice

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 the 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 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 judgement to amend the existing act and protect the minority community drawing additional sections or perhaps rename it to “Protection of Women and LGBTQ from Intimate Partner Violence”. The day is not far for such judgement to come. Meanwhile the victims of 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 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 judgements 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, Society at large where a relationship exists and if proven can get a 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 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 the family member can be granted temporary custody to the person making 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 offence under sub-section (1) of section 31 has been committed by the accused.

What are the types of Violence 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. 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 attraction towards same sex relationship and was blackmailed by the partner to expose his orientation to his family, to keep it a secret he was financial 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.

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

• Restrained from meeting the partner, telephone and access to the outer world was 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 the parents and their rights to ancestral property are violated.

• A recent case I am representing the victim, on threw light on the human trafficking element, especially from Bangladesh few people are trafficked into and are victims who suffer pain beyond words that can explain. The victims rights are infringed and suffer sexually transmitted diseases too.

There were few of many such examples, overall, the LGBTQ community is subject to similar prejudices and are 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 the society. They suffer mental health issues such as depression or self-harm followed with suicidal thoughts.

How to seek Legal Advice ? How can a lawyer assist the Victims of LGBTQ Community?

1.      Legal Consultation / Legal Advice:

 The focus of this conversation will revolve around

• Creating Awareness and Educating the legal rights that can be exercised
• Possible options, merits of the actions, and the various ways you can proceed with litigation.
• All pros and cons are discussed before taking any legal action, and how to seek intervention from Police and press criminal charges, FIR etc…

2.      Mediation :

If you are willing to resolve the issue with the opposite party without going to the court or police

• Start the process by sending a legal notice to the opposite party
• Decide a time for negotiation / mediation
• Resolve the Dispute and draw an MOU with terms and conditions
• Compensation or Other call of action as per the agreed terms
• Get the papers registered, matter gets disposed amicably.

3.      Litigation :

If you are already in litigation, either as a victim or accused, or wish to initiate litigation

• Prioritize the issues on which you need to draw litigation
• Get ready with the draft / papers to be filed
• The matter gets filed as per the jurisdiction
• Ensure you carry the required proofs / evidence to show your rights are infringed
• Key stages that follow the matters gets filed are Evidence Stage, Examination and Cross Examination Stage and the Final Arguments.
• Judgement / Orders are passed.
• If the opposite party feels the orders are not in their favor and goes for an appeal you will defend. If you believe the orders are not in your favor, you may appeal in the high courts within 60 Days from the orders are passed.

 

What LGBTQ cases are filed in the courts of India? What Judgements paved way for LGBTQ Rights? 

             Some quotable cases that draw precedence and a ray of hope for the LGBTQ victims that their issues will not only be heard but also will find justice upholding the rights.

 1.      NAVTEJ SINGH JOHAR V UNION OF INDIA

The Bench struck down Section 377 to the extent that it criminalized sex between two consenting adults.

 2.      NATIONAL LEGAL SERVICES AUTHORITY VS. UNION OF INDIA

The Court upheld the right of all persons to self-identify their gender. The Court clarified that gender identity did not refer to biological characteristics but rather referred to it as “an innate perception of one’s gender”. Thus, it held that no third gender persons should be subjected to any medical examination or biological test which would invade their right to privacy.

 3.      ARUN KUMAR VS. INSPECTOR GENERAL OF REGISTRATION

The court looked at the term ‘bride’, as mentioned in Section 5 of the Hindu Marriage Act meant only women or included transgender persons as well. This judgement expands the category of women to include transgender people to identify as women to be brides as well. In simple words, if a man is married to a Transwoman the marriage is valid, and the transwoman also get the rights of Maintenance, Spousal Support, Divorce and if subjected to violence by her intimate partner gets the relief as per the domestic violence act.

 4.      S SUSHMA VS. COMMISSIONER OF POLICE

This is the case where a lesbian couple who eloped to Chennai were being harassed by their families. The court said action would be taken against professionals involving themselves in any form or method of 'conversion therapy' which includes revoking their license to practice.

Justice Venkatesh also directed several reforms in institutions / schools / colleges to hold Parents Teacher meetings and explain parents about the issue’s LGBTQ community, also suggested changes in the school curriculum.

A very important direction from this judgement was to Police Department, if they receive complaints from the family or any other individual about consenting adults of the LGBTQ community, close the complaint without subjecting them to any harassment.

5.      VAIBHAV JAIN & ANR VS. UNION OF INDIA & ANR also in a similar other case DR. KAVITHA ARORA & ANR VS. UNION OF INDIA

The petition of Vibhav Jain vs Union of Inida seeks a declaration stating that the Special Marriage Act ought to apply irrespective of gender identity and sexual orientation, the same is the prayer cited in the matter of Dr. Kavitha Arora & ANR vs Union of India.

In the matter of Vaibhav Jain and Anr v. Union of India the Petitioners have not only challenged the Special Marriage Act, an appeal also is recorded. Two gay men who got married in United States when they tried to enlist their marriage their application was declined. The appeal was filed to proclaim that the Foreign Marriage Act, 1969 should be perused to apply to same-sex relationships.

Conclusion

The current situation has many shades of gray that need to fade away for the rainbow to reflect true colors and enjoy the fundamental rights the Constitution of India provides to its citizens. While the journey towards equality, inclusiveness and non-discrimination has started, the LGBTQ community continues to face violence and discrimination.

Trust this blog post has helped you understand your legal options, and the course of action you may take when your rights are infringed. Feel free to reach me at lawyersonia@gmail.com or call at 9845944896 for counselling and discussion if you are facing issues and seek legal remedy.

What should you do after you are scammed, defrauded, conned, tricked or cheated. ?

 

The Sinking feeling you experience cannot be explained by words, you may blame yourself, you may cry,  you may feel helpless, your trust is broken and its simply difficult for someone to let go, it takes a lot of time to heal. Nonetheless you should definite fallback on the legal mechanism in the country. The instruments of law enforcement are such which will surely ensure the guilty is punished for the act of cheating and fraud.

The intention of this blog is to educate you on the do’s and don’ts after being cheated, it can be a relationship or a business transaction or an internet scam, there are ways to handle them.

Let’s classify the ways to deal with in two parallel categories.

1.       Emotional

2.       Legal

 

How to deal EMOTIONALLY when you are a victim of a Scam, Fraud, Cheating ?

1.  Don’t Feel Helpless and stop blaming yourself : The first suggestion I give to my clients is to stop blaming yourself, don’t allow you to be judged by someone who does not know the situation you have gone through.

Victim blaming its quite a natural and common phenomenon, when you discuss with your near ones too, they get into blame game. You need to be tough, many at times people take harsh steps of committing suicide when they get cheated in a relationship, or lose money or are conned in some way where their self-respect is lost.

 

2.    Give yourself time but stop living in the Past : Grief is a normal human response, its ok to feel sad, depressed and absolutely normal for you to go through the turmoil from days to weeks and sometimes even months depending on the loss you suffered.

Also know that the scammers who loot you are professionals and sometimes operate as a team, thinking too much about the past will impact your health. What’s happened may be bad, but see this as a learning lesson and move on, the future is in your hands and you alone can shape it.

 

3.   Talk to someone : Talk with your friends or someone you trust, find a counsellor who understands and empathizes with you, talk to a legal advisor and gather advice on how to tackle the issues legally. Talk to someone who can laugh with you and not laugh at you.

Sometimes just venting out helps you feel relaxed, many a client of mine spend time with me talking out their issues and challenges, they need a patient listener who can not only listen without judging but also guide them.

On the flip side not talking and keeping things to yourself may be fatal, I have seen people who don’t express and keep things to themselves no only suffer health challenges but also tend to develop suicidal tendencies, they also face a lot of relationship challenges.

 

How to deal LEGALLY when you are a victim of a Scam, Fraud, Cheating ?

Based on my experience and the cases that I have dealt with we can categorize Cheating broadly into two categories.

 

1.       Personal : Matrimonial / Marriage related Frauds, Dating and Romance Scams, Adultery or Extra Marital Affairs, Identity Fraud, Blackmail using your Private Data or Nude Pictures.

 

2.       Financial : Cheated by giving Money to some (either as loan or for some work or business), Real estate Frauds, Internet Scams, Lottery Scams, Employment Scams, Investment and Ponzi Schemes, Online Shopping Scams, Hacking, Credit Card and Banking Frauds, Freelance Assignments and Commission related Frauds, Medical Frauds, COVID related Frauds etc.…

Irrespective of the challenge you have faced and been cheated either in a personal relationship or in a business transaction there are ways to deal with it legally. Here are the steps you need to take.

1.       Speak with your legal advisor and understand the legal complexities, discuss all the possible (If – Then – Else) scenarios and get all your answers, remember you are getting into Litigation and you need to know all possible things that will come your way and the also the approximate cost involved. Finally understand how a complaint should be drafted or should you directly file a suit.

 

2.       Based on the advice from your lawyer, if you decide to go through police and file a complaint, under the guidance of your lawyer draft a strong complaint, ensure you have covered all the points in your complaint and not missed out anything. (Its obvious when you are under stress, there may be some information you may not remember, its ok if there is some info missing and can be later appended, but try as much as possible to remember the dates, names of the people, address, location, etc.… and be as detailed as possible in the complaint.)

 

3.       Visit to the police station as per your jurisdiction by yourself or with your lawyer and file a complaint. Collect the NCR number and follow up to get the FIR done.

 

4.    Once the FIR is done an Investigation Officer will be assigned and will start investigating,

 

a.       If the person against whom you have complained is caught, and you will be informed to visit the police station. If there is an opportunity to compromise and you too wish, the matter can be settled here, your lawyer will do the paperwork and along with the police get the matter resolved. But if you wish that the person should be punished, and the act committed has not only infringed your personal rights but also is a crime against the state the matters proceeds further.

 

b.      If the person against whom you have complained is not caught after all possible efforts and the police too is unable to trace due to lack of identity or you have no whereabouts of the person to be traced, then the matter will be recorded and the person will be classified as ABSCONDING. 

 

Note : As per Article-20(3) of Constitution of India "no person accused of an offence shall be compelled to be a witness against himself." The accused must be presumed innocent until proved. Hence it is your duty to prove the offence which you have given in the written complaint with evidence. In most of the case due to lack of evidence the accused is scot-free, and the victim continues to suffer … the miscarriage of justice …

 

5.       The Charge sheet is prepared as per the investigation and gets filed in the court by the police and a Public Prosecutor is assigned to represent the state while a private lawyer who you have engaged can help representing you and assist the Public Prosecutor. The accused will hire a lawyer who will defend him.

 

6.       If the accused is caught

 

a.       the trail begins in the court of law and goes through various stages starting from Summons, Evidence, Eyewitness, Examination and Cross Examination, Final Augments followed with the judgement and decree. If the judgement is in your favor, then you will file an execution petition and get the reward as per the judgement if not you will have to knock the doors of higher courts.

 

b.      If the accused is not traceable the order will be an Ex-Parte in your favor.

 

7.       The accused may also go for an appeal if convicted and the process continues in the higher courts.

In my experience the suit may run anywhere between 18 to 36 months, and in a span of three years most of the cases get resolved. There is always a provision for out of court settlement and the case gets withdrawn and matter gets quashed.

Essentially, there is an act committed by some person or a group of persons (scamster / fraudster / cheat) with an intention to gain value by manipulating and playing with your emotions. They are professionals and the common man gets duped.

The intention of this blog is to educate the reader that there is always a dawn after the dusk, there is always a ray of hope, there is always help available, there is always guidance and advice available, don’t feel yourself alone, depressed and take any hasty decision because you went through a bad episode of your life.

If this blog helped you do like, share and comment. Feel free to reach me at lawyersonia@gmail.com or +91 9845944896 for advice and or counselling.

 

Top 5 Reasons your Wife fell out of love with you / cheating on you

lawyersonia@gmail.com | 9845944896 | Divorce Lawyer | Image Source : GQ - Tara Jacoby

Women in India are turning licentious towards infidelity --- In one such survey and research conducted by Gleeden across Bangalore, Mumbai, Delhi, Chennai, Hyderabad, Pune and Kolkata

• 41% of them admitted of having had regular sexual encounters with someone other than the spouse, against 26% men.
• 53% of Indian married women admitted having already had an intimate relationship outside their marriage, against 43% men
• Surprisingly, 69% of women also believe they will be forgiven by their partners

In my past decade and half practicing Family law, I have seen a raise in the divorce’s cases especially in the last 3 to 4 years filed by men citing Adultery by their wife as a reason.

Although Adultery under section 497 of IPC does not attract punishment its still a strong ground for divorce. Men who have evidence in the form of electronic records, telephone calls, WhatsApp Chats more so where women have exchanged selfies and videos in compromising situations have been strong evidences submitted in the court of law and without second doubt the divorce gets granted.

If Adultery is proven the husband need not pay maintenance, no matter the wife is working or has no source of income.

This blog is more towards the discoveries I have had during the counselling sessions with my clients, there are many spouses who wish to forget and forgive the past and restart a fresh relationship and here are top 5 elements I have discovered during the counselling sessions with my clients which I summarize for the benefit of all readers …

1. Communication Gap

a. Working husbands of wives who are homemakers often knowingly or unknowingly neglect the importance of communication, they often are so very tied up with work and other priorities of parents and children that they are unable to give quality time to listen to their wife. The home maker wife is reduced to that of a domestic help taking care of the household chores, parents, in-laws, children and does not get the attention from her spouse.

b. Homemaker wife’s have admitted to me during the counselling sessions that they get a listening ear in a friend (men) and tend to talk to them because the husband is busy, such talks slowly drift into a relationship without the knowledge of the wife and the bonds go beyond the barriers of the society

c. Another complaint from the wife typically is the love and care the husband showers towards his parents and siblings or children is not how the husband communicates with the wife, which causes the wife to feel worthless and depletes her self-esteem.

2. Apprehensive Husband (Giving No Space to Wife in a Relationship)

a. “Couples after marriage are two bodies and one soul”, but this does not mean the husband does not give the wife her personal space.

b. Being insecure, possessive, jealous, suspecting her always, not giving her own space are other few reasons cited often during the sessions I here as reasons why the wife fell out of love with her husband.

c. Another important element is that of her Identity… she is not Mrs. XXXXXXX she also has her own identity. Often the wife is identified by her husband’s title, designation, position, and sometimes its aggravated when the in-laws taunt her and deprive her of her own identity. She finds herself being respected by someone else drifts her away from the husband.

d. This is often a complaint from the working women too, who complain that the husband suspects for no reason, such suspicion further results into domestic violence and financial abuse too, sometimes issues escalate due to in-laws.

3. Wrong Marriage (Marriage by Force)

a. It is very much possible in India, its unfortunate though, but I have dealt in many cases where an Annulment is sought just a few weeks after marriage because it was a forced marriage.

b. The girl was not willing to marry, maybe she loved someone else, but due to family pressure, prestige of parents, society etc… has ended up in this relationship (Arranged Marriage). Coercion is one such element which makes the relationship break, no matter the husband has put a 100% into the relationship but she may have not seen him as a partner of choice.

c. Sometimes, the relationship continues long and after few years its discovered that she lived with the husband only because of a promise she made to her ailing parent, and after the death of her parents she too wants freedom from such relationship she is got into, the husband may be 100% committed but is completely unaware of her intentions.

d. There are few cases I have dealt with where Same Sex attraction is another possible cause where the bonds and marital ties are falling apart, the partner in the relationship was not inclined or prepared for this marriage. Unable to express her/his true orientation has forced them into this relationship and as they gather courage to express themselves often seek divorce and move out of the marital ties.

4. Prince Charming is no more Handsome

a. I too was surprised in one such mediation session where this girl walked up and said my husband is no more the one, he used to be. Maybe the husbands are too busy to take care of themselves and have put in all the efforts working day and night to keep one and all in the family happy and healthy.

b. While doing so, the husband ends up having grey hairs not dyed, he has gained extra pounds, has no time to pick a new pair of shoes or did not find time to buy good clothes for himself. The wife sees her husband as her hero and wants him to be her handsome prince charming no matter the age.

c. Physical attraction is a very crucial and important element, one should forget to pamper oneself and give a chance for the partner to look out at someone else.

d. The Husband is no more the active and energetic like he was before marriage, after marriage he turned into a boring, grumpy, uninteresting person. That interesting man she fell in love with became a snooze fest she had no respect for and very little feelings of love towards him.

e. There are instances when women have admitted that they have tried many things to impress and seduce their husbands, being romantic, good food, seductive dresses but husbands have not appreciated them for the efforts they put in.

5. Poor Sexual Relationship and Lack of Romance

a. If husband is ignoring and rejecting the wife’s sexual needs and advances are a serious no-no in a good marital relationship. If the husband has a low libido or suffer a medical condition, ensure he communicates to his wife or ensure he finds a cure for the same.

b. Romance and Sexual bonding forces intimacy, it’s a stress buster, Sex releases endorphins which are essential to feeling good, lowering irritability and fighting off periods of depression. The hormone oxytocin released during sexual stimulation helps in bonding and the feeling of security and connectedness.

c. Many couples have also complained, it’s not the frequency but the quality of sexual life, some women complain the husbands to be rough, and they experience sex more as a marital rape, and in few such instances the women complains her husband to be a vegetable in the bed not showing any interest towards her.

When a woman is falling out of love with her man, she rarely comes right out and says it. Instead, the signs will be made clear to him in a series of behavior changes. Lack of intimacy, Lack of time, Talking about other men etc…

Husband’s especially in an arranged marriage have admitted that they fail to tap into a woman’s heart. Marriage is just another set of family responsibilities

Couples who go for counselling sometimes see results but the return to bliss is rare and short-lived and relationships end up in Divorce. It’s good for the couples to understand the challenges, know the legal frameworks and amicably resolve the matter, maintenance is not awarded to a cheating spouse but if there is a child involved it becomes a complex lawsuit, intervention at the right time, preparedness, evidence and various other court room arguments come to the rescue.

Trust this blog has helped open avenues to take corrective actions, though reasons are seen from a Women’s standpoint, they are gender agnostic and in today’s changing family dynamics, the first step is to accept the fact instead of fighting the thinking traps. a


Reach out to me if you wish to discuss your matter or seek counselling and legal advice at lawyersonia@gmail.com or +91 9845944896