In a phenomenal move this Monday, the Orissa High Court has allowed a same-sex couple to have a live-in relationship. The court also extended the protection of domestic violence law to the woman partner to exercise her legal rights in case of a separation.
A bench comprising Justice S K Mishra and Savitri Ratho passed the decision after a habeas corpus petition was filed by one of the partners, seeking production of the other before the court.
Exercising the right to the self-gender determination under the Supreme Court’s 2014 verdict in the NALSA case, the petitioner preferred to be addressed as “he”. For the same, ‘he’ furnished a certificate to show that he had gender dysphoria (gender incongruence) and has no psychotic symptoms or other psychiatric morbidities.
The petitioner knew that same-sex marriage was not legal in India as of now, yet he sought the right to live together as they were adults. In the provisions of the Domestic Violence Act, 2005, the legislature acknowledged live-in relationships, irrespective of the gender, by giving rights and privileges to the ‘woman partner’.
According to reports, the couple fell in love in 2011 and has been in a consensual relationship since 2017. They filed a joint affidavit that gave details of where they stayed in Bhubaneswar and affirmed that the two were in a live-in relationship. On April 9, his partner’s mother and uncle forcibly took her away. The mother reportedly pressured his partner to marry someone else. The petitioner approached the court as the Bhubaneswar police did not take action on his complaint.
Due to the ongoing pandemic, the judges interacted with the petitioner’s partner through video-conferencing to know her will. Moreover, her mother urged the bench to ensure her daughter’s safety in case of allowance of habeas corpus.
Following this, the judges wrote two separate but concurring verdicts while allowing the habeas corpus. They further directed the Odisha government to safeguard the couple’s rights under Part-III of the Constitution — the right to life, right to equality before the law and equal protection of the law.
In accordance with the apprehensions of the partner’s mother, the court ordered the petitioner to “take all good care of the lady” as long as she resided with the latter. The judges also ordered that the partner henceforth would not be stopped from speaking to her mother and sister over the phone or even visit them, vice-versa. The court empowered the partner to move court under the Protection of Women from Domestic Violence Act 2005.
“Thus, taking into consideration the aforesaid authoritative pronouncements of the Supreme Court, there is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner”, the judgment read.
Justice Savitri Ratho also underscored the freedom of choice to choose one’s own partner.
“The oft-quoted maxim – love knows no bounds – has expanded its bounds to include same-sex relationships. A reading of the Supreme Court judgments will indicate that individual rights have to be balanced with social expectations and norms. The freedom of choice is therefore available to the two individuals in this case who have decided to have a relationship and live together and society should support their decision,” she pronounced.