Orissa High Court Reiterates Gay Couples' Right To Live Together

The Orissa High Court on August 24 reiterated one's right to self-determine their gender and their right to choose their partner on a plea filed by a 24-year-old after his partner—Rashmi (name changed) was forcibly separated from him.

The 24-year-old woman who identifies as a man, filed a habeas corpus plea after his partner—a woman—was forcibly separated by the latter's family. The plea submitted the couple were both adults, were in love and in a consensual relationship since 2017.

Coming to the couple's rescue, the high court observed that, "Law is a reflection of current social values or norms" which "undergo change with time". Thus, the Courts "recognise these changes" and rule accordingly.

"The oft-quoted maxim – love knows no bounds has expanded its bounds to include same-sex relationships," the high court observed. The court directed the state "to clear the way by taking appropriate administrative/police action to facilitate" Rashmi's return to her partner. The court also directed the state to give Rashmi protection under the provisions of the Domestic Violence Act, 2005.

Relying on Supreme Court judgments, the high court observed there was no scope for contrary views on the issue of rights 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..."

The court acknowledged that same-sex relationships are unusual and apart from the rights of the couple in question, interest of the family members—in this case, the interest of the girl's mother and sister—"will be affected because of the mindset of the society they live in…".

"It goes without saying that Rashmi's decision will affect her mother…and her younger sister, both mentally and socially," the court observed. However, "the possibility of social stigma or mental turmoil" could not stifle Rashmi's right to select her life partner, Justice Savitri Ratho said in her concurring but separate opinion.

However, while recognising Rashmi's rights, the court could not "remain oblivious to the pain and tribulations of the mother and sister who have to live in society..." especially in a case where "trepidation is multiplied," because of the "the nature of choice". In granting her rights, the court reminded Rashmi about her "duty towards her mother and younger sister i.e. to look after their financial, social and emotional well-being".

Same-sex couples can live together, but cannot marry

The Orissa High Court's ruling bolsters the rights of the LGBTQIA+ community. In June 2020, the Uttarakhand High Court ruled that same-sex couples cannot marry, but have the right to live together.

Earlier this year in January, Nikesh and Sonu—allegedly the first gay couple to marry in Kerala—filed a plea in the state high court seeking official recognition of their union and challenged the provisions of the Special Marriage Act.

In a landmark verdict, on September 6, 2018, a five-judge Constitution Bench of the Supreme decriminalised section 377 calling it "irrational, indefensible and manifestly arbitrary".