Tarun Mehra
Campus Law Centre, Delhi University
Case Note:
Writ Petition (Criminal) No. 57 of 2020
Decided on: 24 August 2020
Court: Orissa High Court, Cuttack
Quorum: Justice S.K. Mishra, Justice Savitri Ratho
Brief Facts:
The Petitioner who belongs to the female gender had articulated 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 as male and referred to him as he/him/his in the entire proceedings. The petitioner-Chinmayee with his life partner Rashmi (not the original name, which is withheld) were residing in a live-in relationship in the petitioner’s house (both have attained the age of majority). On 09.04.2020, the mother and uncle of the petitioner’s partner (Rashmi) came to her and forcibly took her away against her will. Aggrieved from this, the petitioner-Chinmayee had filed a habeas corpus application under Article 226 and 227 of the constitution of India and therefore, prayed for issuance of a writ of Habeas Corpus directing opposite parties to produce his partner of the petitioner before the Court and to pass appropriate orders.
Submission of Parties:
The petitioner urged that both the petitioner and his life partner (Rashmi) are major and have been enjoying consensual relationship since 2017 and relied upon the joint affidavit 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 the ‘Protection of Women from Domestic Violence Act, 2005 has acknowledged the live-in relationship by giving rights and privileges. Therefore, the petitioner contended that they both belongs to the same gender and are not competent to enter into wedlock but still have the right to live together.
The respondent expressed his concerns about the well-being of the daughter and urged the court to pass any order in view of the safeguards of the petitioner’s partner for her well-being and safety by considering the judgments passed by the apex court on the rights of the individuals belonging to the same gender. State is willing to carry out any orders passed by this court.
Decision:
Observations of Justice S. K. Mishra
Justice Mishra referred to the judgment of the Supreme Court in the case of National Legal Services Authority vs. Union of India and others, (2014) 5 SCC 438 and Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1 and 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 that social reforms cannot take place until it is ensured that each and every citizen of the country can exploit his / her potential to the fullest. Justice Mishra also referred to the Supreme Court’s judgement in the case of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, in which it was held that Section 377 of the Indian Penal Code, 1860, which penalises the same couples, violates Article 14, 15, 19 and 21 of the Indian Constitution and further held it unconstitutional in so far as it criminalises consensual sexual conduct between two adults of the same sex.
Therefore, the bench allowed the writ application and directed that the petitioner and his partner have the right to decide their sexual preferences including the right to remain as live-in partners.
However, the court also acknowledge the apprehensions of Rashmi’s mother and directed that, as long as the lady is staying with her, the petitioner take all good care and the Mother, sister and Uncle of the lady would be allowed to have a communication with her both over the phone or personal.
The court further held that the lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.
Observations of Justice Savitri Ratho
J Ratho agreeing with J Mishra’s reasoning and remarked that this is an unusual case along with the rights of the two individuals who have exercised their right to live together, the interest of two other individuals will be affected because of the mind-set of the society they live in.
Justice Ratho underscored that law is a reflection of current social values and keeps abreast of the changing social norms and acknowledged the fact that taking the mind-set of the society in which the mother of Rashmi lives will take some time for her to accept the decision of Rashmi.
Justice Ratho further said that on account of the possibility of social stigma or mental turmoil caused to them, Rashmi’s right to select her life partner, cannot be negated.
However, as she noted, 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. Also noted that Rashmi should not forget her duty towards her mother and younger sister i.e., financial, social and emotional well-being.
J Ratho directed and made clear that Rashmi’s Uncle and mother should not create problems in the life of petitioner and Rashmi and so that they will lead to a happy and harmonious life.
