Right of Every Human Being

‘Love’ – A Right of Every Human Being irrespective of Biological Sex, Gender Identity or Sexual Orientation

Law is a reflection of current social values or norms. Social norms undergo change with time and law keeps abreast with the same. Courts recognize these changes and rule on the same. The oft quoted maxim – love knows no bounds has expanded its bounds to include same sex relationships.

Savitri Ratho, J.

In a society in which consensual sexual relationships between those of the same biological sex was criminal up until 2018 when the Supreme Court of India decriminalised section 377 of the Indian Penal Code, it was almost impossible to imagine the plights, among others, of those same-sex couples who were in love and living/wanting to live together or wanting to marry but could not tell the world for fear of being punished under section 377. Hence, one can only imagine that even if their basic human rights were violated, no such person could ever reach out to any court of law for justice because their sheer way of living would be considered as criminal.

Today, with the decriminalization, we as a society are lucky to see that human beings, irrespective of their biological sex, gender identity or sexual orientation are able to seek remedies from courts. Recently, a plea has been filed in the Delhi High Court seeking recognition of rights of same-sex couples to get married under the Hindu Marriage Act, 1956. A similar petition seeking recognition of homosexual marriages under the Special Marriage Act is pending in the High Court of Kerala as well.

While the above are still pending and one does not know what the courts will hold, this particular blog is dedicated to celebrating a judgment passed recently by the Orissa High Court on 24th August 2020 on a similar point – right to live-in relationship of a same sex couple – and will certainly go a long way in paving the path for the future of same-sex couples.

In this case – Chinmayee Jena @ Sonu Krishna Jena (“Petitioner”) vs. State of Odisha & others – the Petitioner aged about 24 years approached the Court with the grievance that his partner “Rashmi” (original name withheld) was forcibly taken away by her mother and uncle and Petitioner had come to know that they would try to get her married to someone else (Note: Petitioner has exercised his rights of self-gender determination and preferred to be addressed as he/his and will be referred to in this blog as he/him/his). Petitioner and his partner are major, they fell in love in 2011 and were in consensual relationship since 2017.

Petitioner stated that he had availed certification of Gender Dysphoria for Trans Man from a doctor (D.P.M., M.D. (Neuro-Psychiatry)) who wrote in the certificate that Petitioner had consulted him regarding acute discomfort with his assigned gender and on taking detailed history, he found that the Petitioner had gender dysphoria from an early age. Petitioner contended that in the provisions of Protection of Women from Domestic Violence Act, 2005, legislature has acknowledged live-in relationship by giving rights and privileges, and though they belonged to the same gender, they have got a right to live together even outside the wedlock. The question, therefore, for consideration of the Court was whether the Petitioner could continue to live with his partner.

In coming to a decision, Court referred to the Supreme Court’s decision in the famous case of National Legal Services Authority vs. Union of India and others, (2014) 5 SCC 438, in which it was held that self- determination of gender is an integral part of personal autonomy and self-expression and falls with the realm of personal liberty guaranteed under Article 21 of the Constitution. The Court held that 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 and that State shall provide protection to them. It also said that Petitioner was to take good care of his partner as long as she is residing with him, that she will have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005 and the family of the partner would be allowed to have communication with her including visiting her.

Savitri Ratho, J further added with respect to the society that observations of the Supreme Court in the case of Shakti Vahini vs Union of India, (2018) 7 SCC 192 will also apply to this case. Interestingly, the Shakti Vahini case is with respect to “honour crimes” and the illegal activities of “khap panchayats” and one of the portions of the judgment quotes is, “When two adults marry out of their own volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation. The majority in the name of class or elevated honour of clan cannot call for their presence or force their appearance as if they are the monarchs of some indescribable era who have the power, authority and final say to impose any sentence and determine the execution of the same in the way they desire possibly harbouring the notion that they are a law unto themselves…”

Savitri Ratho, J also observed that merely because Rashmi will join the company of the Petitioner, there is no bar for her to separate ties with the Petitioner in case their relationship falls apart or she wants to go back to her mother, whatever be the reason.

Adv. Shivangi Prasad, Author & Partner, POSH at Work

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