“Same Sex Couples Can Form A Family”: Madras High Court Backs LGBTQIA+ Couple’s Right To Cohabit – The Commune – TheCommuneMag

Mainstreaming Alternate
In a ruling that reinforces the rights of LGBTQIA+ individuals in India., the Madras High Court has held that while same-sex marriages may not yet be legally recognised, queer individuals are fully entitled to form families and live with partners of their choice.
A Division Bench comprising Justice G.R. Swaminathan and Justice V. Lakshminarayanan made these observations while adjudicating a habeas corpus petition filed by a woman whose same-sex partner had been allegedly abducted and detained by her natal family.
Referring to the recent Supreme Court ruling in Supriyo @ Supriya Chakraborty v. Union of India (2023 INSC 920), the High Court acknowledged that, “While Supriya Chakraborty v. Union of India case may not have legalised marriage between same sex couples, they can very well form a family. Marriage is not the sole mode to found a family. The concept of ‘chosen family’ is now well settled and acknowledged in LGBTQIA+ jurisprudence.”
The Court also echoed earlier sentiments expressed by Justice N. Anand Venkatesh of the Madras High Court, who had advocated for the recognition of civil unions among same-sex couples.
Background: Abuse, Confinement, Police Inaction
The case was brought before the Court after the petitioner alleged that her partner had been forcibly taken and detained by her family. The local police, instead of intervening to assist the couple, reportedly pressured the detenue into going with her parents, who then subjected her to physical abuse and coercive “corrective” rituals aimed at changing her sexual orientation.
The detenue’s mother accused the petitioner of manipulating her daughter and alleged drug addiction. However, during a direct interaction in court, the Bench dismissed these claims.
“The detenue is aged about 25 years. She is well qualified. She appeared to be a perfectly normal looking young woman. It would be unfair to accuse her of any kind of addiction. To a specific question from us, the detenue replied that she is a lesbian and in relationship with the writ petitioner. She made it clear that she wants to go with the petitioner. She confirmed the allegation that she is being detained against her will by her natal family. It appeared that she was forcibly taken to her home and beaten.”
Yogyakarta Principles And A Mother’s Prejudice
In support of their ruling, the judges referred to the Yogyakarta Principles — an international legal framework adopted in 2006 on the application of human rights in relation to sexual orientation and gender identity.
They also drew a poignant comparison with Justice Leila Seth, the late Chief Justice of Himachal Pradesh and mother of renowned author Vikram Seth, who had openly supported her son’s coming out as gay.
“The mother of the detenue is no Leila Seth. We could understand her feelings and temperament. She wants her daughter to be like any other normal, heterosexual woman, get married and settle down in life. We endeavoured in vain to impress upon her that her daughter, being an adult, is entitled to choose a life of her own.”
The Court lamented that Justice Seth did not live to witness the Navtej Singh Johar v. Union of India judgment that decriminalised homosexuality in India.
Critique Of Terminology And Final Orders
In an aside, the Court expressed discomfort with the term “queer,” stating that conventional dictionary meanings such as “strange” or “odd” still carry pejorative undertones.
Upholding the detenue’s right to live freely with her partner, the Court delivered a strong rebuke to the authorities. “We censure the rank inaction on the part of the Police and the insensitivity shown by them. The Yogyakarta Principles affirm the right to security of the person concerned. When there is a right, there has to be a correlative duty. We hold that the Government officials, in particular the jurisdictional Police, have a duty to expeditiously and appropriately respond whenever complaints of this nature are received from the members of the LGBTQIA+ community.”
To ensure continued safety, the Court issued specific directives: “We also restrain the detenue’s natal family members from interfering with her personal liberty. We issue a writ of continuing mandamus to the jurisdictional Police to afford adequate protection to the detenue as well as the petitioner as and when required.”
Advocate M.A. Mumtaj Surya appeared for the petitioner, while Additional Public Prosecutor E. Raj Thilak represented the Respondents.
(With inputs from Verdictum)
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