The Orissa High Court allowed the petition of a 24-year-old woman to get back her same sex partner who was forcibly separated from her by the partner’s Mother and Uncle.
The Bench of Justices S. K. Mishra & Savitri Ratho was hearing the matter; however, the Justices went out to write separate but concurrent orders allowing the woman to stay with her same-sex partner (Rashmi).
The petitioner in the present matter originally belonging to female gender had exercised his rights of self-gender determination and preferred to be addressed as ‘he/his’.
Therefore, the court recognized the petitioner’s right to be treated like a male and referred him as he/him/his throughout the proceedings of the case.
This ruling emanates from an application filed under Article 226 and 227 of the Constitution of India, 1950 in which the petitioner-Chinmayee Jena, aged about 24 years had approached the Court with the grievance that his life partner “Rashmi” (not the original name, which is withheld) had been forcibly taken away by her mother and uncle, i.e. Opposite Party Nos. 5 and 6.
In fact, while the same sex were residing so, in a live-in relationship (both having attained the age of majority), on 09.04.2020, the mother and uncle of the petitioner’s partner (Rashmi) came to the house of the petitioner and forcibly and against her will took the petitioner’s partner against her will.
The petitioner, therefore, prayed for issuance of a writ of Habeas Corpus directing opposite parties to produce same sex partner of the petitioner before the Court and to pass appropriate orders.
The Arguments
During the course of the hearing, the learned counsel for the petitioner urged that both the petitioner and his life partner (Rashmi) are major and have been enjoying consensual relationship since, 2017.
The learned counsel for the petitioner relied upon the joint affidavit by the petitioner and Rashmi which was sworn before the Executive Magistrate, Bhubaneswar on 16.03.2020 and contents of the writ petition, argued that both of them fell in love with each other in 2011. Thereafter, they decided to stay together.
It was further contended that in the provisions of ‘Protection of Women from Domestic Violence Act, 2005‘, the legislature has acknowledged the live-in relationship by giving rights and privileges.
Therefore, the learned counsel for the petitioner contended that even if the parties, who are living together in a ‘live-in relationship’ though they belong to the same gender, are not competent to enter into wedlock, but still, they have got a right to live together even outside the wedlock.
While admitting that the legal position has been set at rest by judgments passed by the Hon’ble Supreme Court on the rights of the individuals belonging to the same gender, the learned counsel for the Opposite Party No. 5 (the Mother) and 6 (the Uncle) had expressed his concern about the well-being of the daughter of the Opposite Party No.5.
The counsel prayed that, if any order is passed in favour of the petitioner, and then appropriate safeguards should be given to the petitioner’s partner for her well-being and safety.
On the other hand, recognizing the right of persons belonging to the same sex for a live-in relationship, the Addl. Government Advocate submitted that the state is willing to carry out any orders passed by this Court.
It may be noted that the division bench had, on 17th August; interacted with the ‘victim woman’ (Rashmi) whereby she categorically stated that she wants to join the petitioner of same sex without any further delay.
While referring to the judgment of the Supreme Court in the case of National Legal Services Authority vs. Union of Indiaand others, (2014) 5 SCC 438 and Anuj Garg vs. Hotel Association of India,(2008) 3 SCC 1 , Justice Mishra concluded that it is evident that all humans have the universal right of enjoyment of human rights, the right to equality and non-discrimination, the right to recognition before the law, right to life, the right to privacy and right to treatment with humanity while in detention etc.
Justice Mishra further acknowledged the fact that there cannot be social reforms till it is ensured that each and every citizen of the country is able to exploit his/her potentials to the maximum.
Justice Mishra also referred to the judgment of the Supreme Court in the case of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, the case which held that Section 377 of the Indian Penal Code, 1860, which penalizes self-same couples, transgresses Article 14, 15, 19 and 21 of the Constitution of India.
It may be noted that among other things, the case further held that Section 377 of the IPC, in so far as it criminalises consensual sexual conduct between two adults of the same sex is unconstitutional.
Justice Mishra said,
“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.”
Therefore, the bench allowed the writ application and directed that the petitioner and the daughter of the Opposite Party No.5 have the right to decide their sexual preferences including the right to stay as live-in partners of same sex .
The Court further held that,
“The State shall provide all kind of protection to them, which are enshrined in Part-III of the Constitution of India, which includes the right to life, right to equality before the law and equal protection of the law. Hence, we direct the Opposite Party No.2 to clear the way by taking appropriate administrative/police action to facilitate Rashmi to join the society of the petitioner.”
However, the court also took note of the apprehensions of the mother of the girl. Hence, the court further directed that the petitioner shall take all good care of the lady as long as she is residing with him and that the Opposite Party Nos. 5 and 6 and the sister of the lady would be allowed to have a communication with her both over the phone or otherwise.
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The court further said that “the lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.”
Justice Ratho was of the view that 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 in case of same sex .
Notably, she said
“The oft-quoted maxim – love knows no bound 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 of same sex in this case who have decided to have a relationship and live together and society should support their decision.” (emphasis supplied)
In this context, Justice Ratho observed,
“Therefore, while exercising her right to reside with the partner of her choice, Rashmi should not forget her duty towards her mother and younger sister i.e. to look after their financial, social and emotional well-being.”
Justice Ratho also observed,
“While exercising her right to reside with the same sex partner of her choice, Rashmi should not forget her duty towards her mother and younger sister i.e. to look after their financial, social and emotional well-being.” (emphasis supplied)
Lastly, Justice Ratho was of the view that the Legislature has, of course, recognized the the financial plight of parents and a senior citizen who are often neglected by their offspring by enacting the “The Maintenance and Welfare of Parents and Senior Citizens Act, 2007” whose provisions of which can be invoked by Opp party No 5 (the Mother) if the need arises.
Consequently, Justice Ratho observed,
“We hope and trust that the petitioner and his partner Rashmi will lead a happy and harmonious life so that their family members have no cause for worry and society has no excuse to raise a finger at them.”
