The Madras High Court recently observed that while same-sex marriage has not been legalised in India, that does not mean that people from the LGBTQIA+ community do not form families [MA v. Superintendent of Police, Vellore and ors].
A Bench of Justices GR Swaminiathan and V Lakshminarayanan acknowledged that in the case of Supriyo @ Supriya Chakraborty Vs Union of India, the Supreme Court refused to hold that LGBTQIA+ couples have a fundamental right to marry.
However, marriage is not the only way to form a family, the High Court observed.
“While Supriyo @ Supriya Chakraborty Vs Union of India (2023 INSC 920)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,” it said.
The Court also pointed out that a single-judge of the High Court, Justice N Anand Venkatesh, had also called for taking steps to recognise civil unions between LGBTQAI+ partners,
The division bench made these observations while coming to the rescue of a lesbian couple who were made to part after one of the partners (detenue) was forcibly detained by her family.
The detenue’s partner (petitioner) moved the High Court for relief after the police declined to come to the couple’s aid. Rather, the police forced the detenue to go with her parents, who were accused of then beating her up and forcing her to undergo certain ‘rituals’ to make her ‘normal.’
The detenue’s mother claimed that her daughter was a drug addict who was led astray by the petitioner. The Court interacted with the detenue and debunked her mother’s claim.
“It would be unfair to accuse her (detenue) of any kind of addiction …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,” the Court noted.
The Court went on to observe that the detenue’s mother was ‘no Leila Seth’, while recounting how Justice Leila Seth once wrote a heartfelt note to express support and acceptance for her son, author Vikram Seth.
The Court noted that in the present case, the petitioner was understandably hesitant to even disclose that she was in a relationship with the detenue.
“We can understand the hesitation on her part. Our Society is still conservative … Not every parent is like Justice Leila Seth. She could acknowledge and accept her son’s sexual orientation … Unfortunately, Leila Seth J did not live to see the decriminalisation of homosexuality through the historic judgment in Navtej Singh Johar v. Union of India ((2018) 1 SCC 791). The mother of the detenue is no Leila Seth,” it said.
The Court went on to observe that sexual orientation is one of the most basic aspects of self-determination, dignity and freedom.
“It is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India,” it said.
It also questioned the use of the word “queer” to describe LGBTQ+ persons.
“We feel a certain discomfort in employing the expression ‘queer.’ Any standard dictionary defines this word as meaning ‘strange or odd.’ Queering one’s pitch means spoiling the show. To a homosexual individual, his/ her/ their sexual orientation must be perfectly natural and normal. There is nothing strange or odd about such inclinations. Why then should they be called as queer?” the Court asked.
The Court eventually ruled that the detenue is entitled to unite with her lesbian partner and that she cannot be detained by her family against her will.
