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CAN S 377 HELP IN CASES OF MARITAL RAPE?

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Reading Time: 4 minutes

In this blog, we will be exploring the potential unintended consequences of legal reform. In 2013, we finally saw the reading down of Section 377 which criminalised ‘carnal intercourse against the order of nature’. This law was used to persecute the queer community in India, with cases being brought against those who engaged in consensual anal sex, among other things. The reading down means that now two adults can have sex in whatever manner they please and regardless of sexuality and gender as long as it is consensual. This was clearly a step towards justice for LGBTQ folk in the country but has it had an adverse effect on other minoritised groups—for example, has it harmed women’s rights?

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Devu G Nair v State of Kerala and Ors 2024 INSC 228 (Supreme Court)

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Reading Time: 5 minutes

I. The Supreme Court Deals with Queer Women

Finally, the Supreme Court has dealt with a matter specifically concerning the lived experiences of queer women and persons raised as women. When they run away to escape family violence, often one or both sets of parents file missing complaints, or kidnapping charges against the partners. If apprehended, they are detained by their natal families. Case analysis has shown that in many instances the police and courts side thoughtlessly with the family. In such cases, habeas corpus petitions have been immensely useful in securing the couple’s freedom. Through these petitions the court summons the allegedly detained person (detenue) to court to ascertain their will. In this case the court passed important directions on how to deal with runaway cases.

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Kantaro Kondagari @ Kajol v State of Odisha and Ors WP (C) 4779 of 2022

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Reading Time: 2 minutes

This entry concerns the application of the self-identity principle of gender determination in a pension matter. This simple looking judgment of May 2022 not only sees transgender women as women but also by the correct application of the NALSA judgment and the Transgender Act 2019[1], confers financial rewards on the correct constituents.

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