Bobby Darling moves application in SC, supports pleas seeking legal recognition of same-sex marriage
Bobby Darling, an actor who underwent gender transformation, has moved an intervening application in the Supreme Court supporting the petition seeking legal recognition of same-sex marriage.
Bobby Darling, in her intervening application, has urged the top court to give permission to intervene in the matter and to support the cause of same-sex marriage because such matter relates to the free will of the person which is duly recognised by the various judgements of the top court.
The trans Indian actress has moved the intervening application in the various petitions seeking legal recognition of same -sex marriage which will be heard by a five-judge constitution bench of the Supreme Court from April 18.Pakhi Sharma alias Bobby Darling, in intervening application moved through advocate Meera Kaura said that, the applicant is the best person to make the submissions while filing the instant application for intervention in order to assist the court for the cause of different genders and to request for legal sanctity of stable relations in the form of marriage, otherwise the partners insuch same sex/ third gender relationships, in spite of living together for number of years, there is no formal legal recognition.
Pakhi Sharma alias Bobby Darling also submitted that the same sex marriage may kindly be permitted as the need of the time for bringing financial stability, recognition by the society and for other purposes, namely, alimony, maintenance, etc. so that such couples, after marriage, live with certainty, dignity and with the equality before law and equal protection of law.
"It is submitted that unless the legal sanctity to such relationships is granted, the long indefinite uncertainty towards the relationship continues and also even after spending considerable time for number of years as husband and wife or spouses, the rights or protections flowing from such relationships, such as pensionary benefits or other benefits of a wife or husband are not given by the government in an arbitrary manner, which is violative of Article 14 and 21 of the Constitution of India," the applicant submitted in the application filed through advocate Meera Kaura.
The top court has recognised that two adults living in private with their own free will, if having a sexual relation, in that event, they are immune from criminal prosecution under section 377 of the IPC. However, thereafter, if they live for number of years such couples live indefinitely without any recognition to their relationship or living together, whereas "Doctrine of legitimate expectation" is also the part of our basic legal system and that is akin to fundamental rights, the applicant said.
Bobby Darling apprised the court that she was born as male and then known as "Pankaj Sharma", always identified herself as a "woman" and has dressed and behaved like a woman since a long time. Bobby Darling said that in order to get the gender identity and to gain equal respect in the society underwent painful surgery of sex change/reassignment, and entered into marriage with normal male in February 2016 in accordance with Hindu rites and rituals, and thereafter the said marriage was registered.
But later Bobby Darling claimed to face domestic violence at the hands of her husband, alleging that her husband had entered into marriage with her with malafide intentions of cheating her hard-earned money. After few months of marriage, Applicant's husband started building undue pressure on her to part with the possession of her moveable and immoveable properties and create gift deeds etc. in his favour, the application said.
The actress apprised the top court that she suffered a lot of mental, verbal, economic and physical abuse at the hands of her husband, who was compelling her to further part with the ownership and possession of her other properties and also took control of most of her valuables, jewellery and other moveable properties and started selling and/or pawning the same. Bobby Darling apprised the court that she somehow managed to escape from the clutches of her husband and reached Delhi in August 2017 and later filed complaint against her husband.
"That in spite of Applicant's legally registered marriage, the objections pertaining to her prior gender namely male were put forward by her husband during aforesaid legal proceedings, the competent courts have rejected the said legal objections for now," Bobby Darling apprised SC.
"However, there is gap in the law, as on one hand this court in the judgment of NALSA case has held that any citizen or any individual has a right to choose his or her sexual identity or orientation but the purposive test is whether such person can live like any other similarly situated human being in the society or not, that is, after marriage or for all other purposes, such individual will have the equal protection of the laws, like domestic violence act, alimony, maintenance etc.
Under the said circumstances, the limited relief of recognition of gender without any substantive rights is contrary to the mandate of Article 14 of the Constitution of India," Bobby Darling submitted.
"Under the said circumstances, keeping in view the various judgements passed by the court, such as Navtej Singh Johar case, two persons of the same sex or different sexual orientations can live together, but such living together is not recognised by the law, therefore the purpose or the achievement of the said relationship is not fulfilled unless and until such relationship is recognised by the law," the applicant said.
"That in the absence of any law governing marriages or marriage like relationships amongst members of LGBTQI community, and/or Uniform Civil Code, persons like applicant are at an extremely disadvantageous position and suffer discrimination, which is violative of their rights under Article 14, 16 and 21, Constitution of India," Bobby Darling said.
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