Chinmayee never imagined life without her same-gender partner. It was only when her live-in companion was taken away and kept in isolation by parents, she knocked the doors of the court through a habeas corpus petition. And she emerged victorious as the Orissa High Court in a significant judgement held that a person has the right to be in a live-in relationship with a person of his or her choice even though the partner belonged to the same gender as the petitioner.
The joy knew no bounds for Chinmayee ever after.
The petitioner claims that she fell in love with her partner Rashmi (not the original name) in 2011 and had been living in with her consensually since 2017 till Rashmi’s mother and uncle forcibly took her and tried to marry her off with someone of their choice. Chinmayee and Rashmi had studied together in school and college but it was only after Chinmayee started working in Bhubaneswar that Rashmi started staying with her in the same rented house.
But in April this year, her partner was taken away against her will. She had also cited that both of them are majors and under the provisions of Protection of Women from Domestic Violence Act, 2005, they can stay together.
Accordingly, on behalf of Rashmi, Chinmayee, who had in the exercise of her right of self-gender determination, asserted preference to be addressed as a male (Sonu Krishna Jena), filed the habeas corpus application under Article 226 and 227 of the Constitution seeking production of her woman partner. She alleged that her partner was being kept away by her mother and uncle.
A division bench of Justices S.K.Mishra and Savitri Ratho spoke with Chinmayee’s partner Rashmi, who stated that she wanted to join the petitioner without any further delay.
Citing Supreme Court decision in National Legal Services Authority vs. Union of India, holding that the recognition of one’s gender identity lay at the heart of the fundamental right to dignity, the bench also brought in the decision of the top court in Navtej Singh Johar vs. Union of India citing Section 377 of the IPC to be unconstitutional in so far as it criminalised consensual sex between two adults of the same sex.
The High Court bench said that the petitioner has the right of self-determination of sex/gender. She also has the right to have a live-in relationship with a person of choice even when such a person belongs to the same gender as the petitioner.
The division bench of Justice SK Mishra and Justice Savitri Ratho while hearing the petition through virtual mode, directed the police to provide security to the partner of the woman so that she could start living with her, as enshrined in Part-III (fundamental rights) of the Constitution of India, which included the right to life, right to equality before the law and equal protection of the law.
It added that the petitioner would have to take good care of Rashmi as long as she was in the relationship and that her mother and sister would be allowed to communicate with her both over phone or otherwise.
The freedom of choice, Justice Ratho said, 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.
“The oft-quoted maxim – love knows no bounds has expanded its bounds to include same-sex relationships”, said Justice Ratho.
The petitioner originally belonging to female gender, has exercised his rights of self gender determination and preferred to be addressed as he/his. Therefore, the HC has recognized the petitioner’s right to be treated as a male and referred to him as he/him/his.
Shedding light on the landmark judgement by the High Court, Saswata Patnaik, Additional Government Advocate, Orissa said, "This is a habeas corpus petition filed by partners in a consensual relationship since few years. One of the partners was forcibly taken away by her mother and uncle, and was forced into getting married somewhere else. It is at that point of time that the other partner (who has been referred to as the male partner who has had gender dysphoria) filed a writ petition challenging the inaction of police with whom she had lodged a complaint. Before the police could spring into action, the High Court pitched in directing State government to see that the girl is protected and not harassed physically or mentally."
I don't think it's going to have any negative impact or ramifications on the society as the Apex Court has dealt with these issues earlier also. Only a small part that the families have to deal with is social stigma which has also been dealt with by Savitri Ratho in her judgement.
As long as two individuals are staying together, and they want to stay happy in a consensual relationship, social acceptance will follow. It's just a matter of time and people will become more courageous about the relationship they are in; they will not be subjected to gender discrimination. Though we know that these kinds of relationships exist, people don't come forward to claim this relationship due to certain social impediments.Another important and very pertinent aspect that has been dealt with by the court is that it has given a kind of directive to the girl- even if she has voluntarily chosen her partner and wants to stay with her, she should not forget her duty towards her widow mother and sister. The court has also observed that the girl's decision will definitely affect her mother and sister. So the court has given a clear directive to the girl that she should not severe her ties with her mother and take care of her. The court has categorically stated this keeping in view the wishes of both the parties.
- Saswata Patnaik.
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