In a landmark move, the Odisha High Court has permitted a same-sex couple to continue their live-in relationship, and has extended state protection to them. The order was pronounced by a division bench of Justices SK Mishra and Savitri Ratho on a habeas corpus petition filed by one of the partners.
Chinmayee Jena alias Sonu Krishna Jena (24), who is the petitioner, has requested to be addressed as a male, exercising the right to self-gender determination, as mandated by the Supreme Court’s historic 2014 judgment in NALSA vs Union of India case. (The judgment had declared transgender people to be ‘third gender,’ affirming that fundamental rights granted under the Constitution of India will be equally applicable to transpersons.)
Sonu informed the court that he was forced to file a petition, after he and his partner, a young woman, were separated by the latter’s mother in April. Sonu says that his partner’s family was looking for a groom to get her married.
Although the legislature does not allow same-sex couples to get married, they can be in a live-in relationship, irrespective of their gender.
“The state shall provide all kinds 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 law and 18 equal protection of law. 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,” Justice Mishra said.
The Odisha government took no stand in the case but did not interfere with the court proceedings.
“The oft quoted maxim – love knows no bounds has expanded its bounds to include same sex relationships,” said Justice Ratho. “A reading of the Supreme Court judgements 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 added.
Although Sonu’s partner’s mother - a single parent - had expressed her apprehensions regarding the future of her two daughters, the Court said that although social stigma or mental turmoil may be caused to them, the right to select one’s life partner cannot be stifled or negated. “Law is a reflection of the current social values or norms that undergo change with time, and law keeps abreast with the same - courts recognise these changes and rule on the same,” the order said.
The judges also made it clear that if the partner of the petitioner wants to part ways or go back to her mother at any point, she is free to do so. “We hope and trust that the petitioner and his partner 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,” the court said.
(Edited by Athira Nair)