On the 24th of August, 2020, a division bench of the High Court of Orissa confirmed the right of a transgender man and a woman to be in a live-in relationship. The present case was a habeas corpus petition concerning the live-in relationship of a transgender man, the petitioner, and a woman, the alleged detenue. Summarily, the court confirmed their right to be in a relationship, and placed an obligation on the State to offer “all kinds of protection” to them to facilitate their exercise of this right. I will first summarily restate the facts of the case and then draw the attention of the reader to five items: 1. The judge’s easy recognition of the self-identified name of the petitioner—an important “best practices” for judges and lawyers dealing with SOGI matters. 2. The not completely relevant history of how the petitioner came to be recognized as a transgender man; 3. Arguably, familial ideology in motion, resulted in adjournments and the delay of the detenue’s (and the couple’s) live-in relationship right, along with certain fundamental rights; and 4. The usage of protection orders to secure the safety of the detenue and the couple.
1. JUDGE’S RECOGNITION OF THE SELF-IDENTIFIED NAME
The facts of the case were that the petitioner and Rashmi (pseudonym) for the detenue were adults who were in a live-in relationship. The present petition was filed when Rashmi was forcibly removed by her family members from the home that the couple shared. The petitioner also filed a police complaint regarding the incident but the judgment notes that no action was taken on the complaint.
The main judgment was passed by Mishra J. and Ratho J. added some supplementary comments through a concurring judgment. One rather small but remarkable thing that one sees in the judgment is that the judge gives recognition to the self- chosen name of the petitioner. In the very first paragraph of the judgment, Mishra J. mentions that the petitioner was assigned gender female at birth but has exercised his right to self-determination of gender and identifies with the male gender, preferring the pronoun, “he.” He accordingly refers to the petitioner as “he” throughout the judgment. This is a rather simple performative act by the judge that is immensely dignity enhancing. He takes the self-identified gender of the petitioner seriously and gives it the due respect that it deserves by using that pronoun. Lawyers and judges who engage with queer litigants should note this manoeuvre and future judgments should follow in the footsteps of the present one in this respect. Although the case record on Manupatra does not, the judgment uploaded on the Orissa High Court website records the self-identified name of the petitioner on the cause title as well.
2. HISTORY OF THE SELF-IDENTIFICATION PROCESS OF THE PETITIONER
After the first paragraph, the court goes into a history of the petitioner’s journey for self-determination. The order details that the petitioner has been diagnosed with gender dysphoria and the doctor’s certification is also reproduced in the judgment. The certificate states that the petitioner does not have any psychotic or psychological morbidities, and is cognitively fit and capable of making medical decisions. It certifies that he is fit to undergo affirmative surgery if he chooses.
It is not clear why the judgment goes into gender identity of the petitioner at such length. Establishing the transgender identity of the petitioner was irrelevant to the disposal of the legal claim being made in this case. The question before the court was: do two adults have a right to a live-in relationship. The answer to that is a resounding yes, and has been confirmed, both for heterosexual couples and non-heterosexual couples (Nandakumar and Sreeja, respectively). [1] Therefore, it is curious why the court needed to establish the male identity of the petitioner before adjudicating on the right. Apart from this specific right to live-in relationship, there is the wider right to liberty which has been given a recent interpretation in habeas corpus cases in the case of the Gerry Douglas case (SC 2018). I will discuss the implications of that case in greater detail in the next section.
3. FAMILIAL IDEOLOGY AND THE DENIAL OF FUNDAMENTAL RIGHTS THROUGH ADJOURNMENTS
At the first hearing following admission, Rashmi, the detenue, expressed her desire to stay with the petitioner, but the matter instead of being decided, was adjourned, because her mother and uncle had not been able to meet with their lawyer. As I have argued here (page 21), such a move by the court is illegal. The Supreme Court has, in the Gerry Douglas case and the subsequently, the Shafin Jahan case (both 2018), clearly stated that in habeas corpus petitions concerning adults, all that the court has to do is ascertain the will of the alleged detenue. It is not required to hear the opinion of anybody else on the matter—even the parents. I have argued here (page 20), that in this way, habeas corpus petitions are different from criminal trials where the accused has a right to defend themselves. Ex parte orders can be passed in habeas corpus petitions.
The court can exercise its parens patriae jurisdiction and override the detenue’s choice only when the detenue is mentally incompetent[2], underage, or has either no parent/legal guardian or abusive ones. No facts were presented in the present case to justify the adjournment of the matter. In the absence of such circumstances, the act of adjournment was illegal, and delaying to honour the wishes of the detenue, denied the rights of equality and equal protection of the law, privacy and dignity of the detenue and the couple in question (for a deeper exploration of how these rights were violated, see here (pages 22-23))
4. PROTECTION ORDER
However, after the first adjournment, the matter was heard on the date subsequently set when the court allowed the request of the detenue to rejoin her partner, the petitioner.
The court also ordered the State to clear the way administratively for the detenue to join the petitioner. As I have argued here (pages 13-14), protection orders have a privacy enhancing effect for queer women in live-in relationships because they provide immediate relief from physical threats and violence that they may face as a result of their choices. In this case, we once again see, such as order being called to the aid of the couple.
Alongside the protection order, the court passed a curious directive. It ordered the petitioner to take “good care of the lady” as long as she stays with him and to allow the lady to communicate with her mother and sister. The family of the partner would also be allowed to visit her at the couple’s house. The background leading to this directive is not clear through the facts of the case except that the mother of the partner had raised safety concerns for the daughter at the couple’s house. The petitioner was required to sign a declaration to the effect and deposit a copy of the same at his local police station and at the court.
5. FINAL WORDS FROM THE COURT
Judge Ratho wrote an accompanying judgment in which she highlighted a few points. 1. the choice that Rashmi was making was certainly one which was within her legal entitlement, but one which would effect her mother and sister, both mentally and socially. 2. That Rashmi should not forget her emotional, social and financial duty to her mother, uncle and sister; she also suggested that her mother could invoke the The Maintenance and Welfare of parents and Senior Citizens Act, 2007, to get support from Rashmi if the need arises. 3. That the society must support this relationship and Rashmi’s mother and uncle should not create any trouble for her and the petitioner; and 4. that Rashmi always had the choice to leave the petitioner and return to her mother although the petitioner should not create conditions for Rashmi which will make her exercise this choice against her will.
She concluded with the hope that the couple would live a happy and harmonious life, giving no cause to the society to raise a finger against them.
[1] Nandakumar & Anr. v. State of Kerala,AIR 2018 SC 2254.
Sreeja S. v. The Commissioner of Police, Thiruvanathapuram & Ors.,Crl. W.P. 371/2018(Kerala High Court).
[2] Subject to the entitlements available through the Mental Healthcare Act, 2017