"Love Knows No Bound Has Expanded Its Bounds To Include Same-Sex Relationships": Orissa HC Allows Same-Sex Live-In Couple To Stay Together [Read Judgment]

The Orissa High Court on Monday (24th August) allowed the petition of a 24-year-old woman to get back her same-sex partner who was forcibly separated from her by the partner's (Rashmi) Mother and Uncle.The Bench of Justices S. K. Mishra & Savitri Ratho was hearing the matter; however, the Justices went out to write separate but concurrent orders allowing the woman to stay with her same-sex partner (Rashmi).Background of the caseThe petitioner in the present matter originally belonging to female gender had exercised 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 like a male and referred him as he/him/his throughout the proceedings of the case.This ruling emanates from an application filed under Article 226 and 227 of the Constitution of India, 1950 in which the petitioner-Chinmayee Jena, aged about 24 years had approached the Court with the grievance that his life partner "Rashmi" (not the original name, which is withheld) had been forcibly taken away by her mother and uncle, i.e. Opposite Party Nos. 5 and 6.In fact, while they were residing so, in a live-in relationship (both having attained the age of majority), on 09.04.2020, the mother and uncle of the petitioner's partner (Rashmi) came to the house of the petitioner and forcibly and against her will took the petitioner's partner against her will.The petitioner, 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.The arguments before the courtDuring the course of the hearing, the learned counsel for the petitioner urged that both the petitioner and his life partner (Rashmi) are major and have been enjoying consensual relationship since, 2017.The learned counsel for the petitioner relied upon the joint affidavit by the petitioner and Rashmi 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 in the provisions of 'Protection of Women from Domestic Violence Act, 2005', the legislature has acknowledged the live-in relationship by giving rights and privileges.Therefore, the learned counsel for the petitioner contended that even if the parties, who are living together in a 'live-in relationship' though they belong to the same gender, are not competent to enter into wedlock, but still, they have got a right to live together even outside the wedlock.While admitting that the legal position has been set at rest by judgments passed by the Hon'ble Supreme Court on the rights of the individuals belonging to the same gender, the learned counsel for the Opposite Party No. 5 (the Mother) and 6 (the Uncle) had expressed his concern about the well-being of the daughter of the Opposite Party No.5.The counsel prayed that, if any order is passed in favour of the petitioner, and then appropriate safeguards should be given to the petitioner's partner for her well-being and safety.On the other hand, recognizing the right of persons belonging to the same gender for a live-in relationship, the Addl. Government Advocate submitted that the state is willing to carry out any orders passed by this Court.It may be noted that the division bench had, on 17th August; interacted with the 'victim woman' (Rashmi) whereby she categorically stated that she wants to join the petitioner without any further delay. The observations of Justice S. K. MishraWhile referring 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 , Justice Mishra 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 the fact that there cannot be social reforms till it is ensured that each and every citizen of the country is able to exploit his/her potentials to the maximum.Justice Mishra also referred to the judgment of the Supreme Court in the case of Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, the case which held that Section 377 of the Indian Penal Code, 1860, which penalizes self-same couples, transgresses Article 14, 15, 19 and 21 of the Constitution of India.It may be noted that among other things, the case further held that Section 377 of the IPC, in so far as it criminalises consensual sexual conduct between two adults of the same sex is unconstitutional.Justice Mishra said,"There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination...

"Love Knows No Bound Has Expanded Its Bounds To Include Same-Sex Relationships": Orissa HC Allows Same-Sex Live-In Couple To Stay Together [Read Judgment]

Sparsh Upadhyay

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