A two judge bench of the Orissa High Court has allowed a queer couple to stay together. The petition had been filed by a 24-year old trans man to get his partner, who had been separated by her parents, back together.
Live Law reported that the petition was heard by Justices S. K. Mishra & Savitri Ratho who delivered “separate but concurrent judgements”.
A Habeas Corpus petition was filed by 24 year old Sonu Krishna Jena after his partner Rashmi (name changed) with whom he had been living, was forcefully taken away by her mother and uncle and was being forced to marry. The court had interacted with Rashmi, who had told the judges that she wanted to live with the petitioner. Sonu, who is biologically female, had asked the court to use he/his/him pronouns for him during the proceedings, and the court agreed.
He had fallen in love with Rashmi in 2011, and both of them had been in a consensual relationship since 2017 and had been living together as well. Sonu’s counsel argued that under the ‘Protection of Women from Domestic Violence Act, 2005’ live-in relationships had been acknowledged by giving them rights and privileges, and while the two could not wed legally, they had the right to live together. On the other hand, the counsel for the parents argued that his concern was for the well being of Rashmi, and that if any order passed in favour of Sonu, proper safeguards for Rashmi’s well-being must be ensured.
After listening to both the counsels, the court took note of both the NALSA and the Navtej Singh Johar judgements of the Supreme Court, and asked the state government to provide protection to the couple, while also asking Sonu to allow Rashmi’s family (mother, uncle and sister) access to her.
“Taking into consideration the aforesaid authoritative pronouncements of the Hon’ble Supreme Court, 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.
Justice Ratho wrote, “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. A reading of the Supreme Court judgements will indicate that individual rights have to be balanced with social expectations and norms.”
“However, while recognizing the right of Rashmi, this Court cannot remain oblivious to the pain and tribulations of the mother and sister who have to live in society. … 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… It is also clarified that merely because Rashmi will join the company of the petitioner on account of our intervention, 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,” Justice Ratho added.
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