The Madras High Court has observed that even though the Supreme Court has not legalised same-sex marriages, such couples can still be recognised as a family. This significant ruling was made by a division bench comprising Justice G.R. Swaminathan and Justice V. Lakshminarayan while hearing a habeas corpus petition filed by a woman in support of her partner.
The expression ‘family’ has to be understood in an expanded sense, the bench said, referencing the Supreme Court’s judgment in Supriyo @ Supriya Chakraborty vs Union of India (2023 INSC 920). The court highlighted that while the apex court may not have legalised marriage between same-sex individuals, that does not prevent them from forming a family unit.
“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 petitioner and the detenue can very well constitute a family,” the court added.
The case arose when the petitioner approached the court, stating that the father of her partner (the detenue) was holding her against her will. The court interacted with the detenue, who appeared in court with her mother. During the interaction, the detenue confirmed she was in a same-sex relationship and had been forcibly taken home, beaten, and subjected to rituals aimed at "normalising" her. She expressed her desire to return with the petitioner.
The mother, however, alleged that the petitioner had misled her daughter and turned her into a drug addict, claiming her daughter needed rehabilitation and counselling. Acknowledging the conservative mindset that still exists in society despite rulings in the NALSA and Navtej Singh Johar cases, the court noted that the mother might have wished her daughter to live a heterosexual life. Yet, the court tried to make her understand, albeit unsuccessfully, that her daughter, being an adult, had the right to make her own choices.
Referring to the Yogyakarta Principles, which are a set of international human rights principles related to sexual orientation and gender identity, the court reaffirmed that such individuals are entitled to the same dignity, rights, and recognition as others.
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The court also noted that in a previous decision, the Madras High Court had approved a "Deed of Familial Association" to formally acknowledge the union of LGBTQIA+ individuals in the absence of legal marriage.
Another significant concern raised by the court was the conduct of the local police. It was found that the jurisdictional police failed to respond to the SOS messages sent by the petitioner and ignored her formal complaints about illegal detention.
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, the court stated.
Another key point raised by the bench was its discomfort with the use of the term "queer" to describe homosexual individuals.
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“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 remarked.
After considering the detenue's clear and voluntary choice to be with the petitioner, the court closed the habeas corpus petition. It restrained the detenue’s family from interfering with her liberty and issued a continuing mandamus directing the local police to provide protection to both the petitioner and the detenue when needed.
Counsel for the Petitioner: M/s. M. A. Mumtaj Surya
Counsel for the Respondent: Mr. E. Raj Thilak Addl. Public Prosecutor
