On the 24^th of September, 2018, a division bench of the Kerala High Court ruled that a same sex couple had a right to live in a live-in relationship. However, this question arose only co-incidentally in a case which was primarily about illegal confinement. This is the first documented case, as per available court records, in which the romantic relationship between the two women in question is openly acknowledged. It also has the distinction of being the first to apply the Navtej judgment which, pertinently, found that consensual same-sex sex was no longer criminal between adults. This blog post will first summarize the case and then focus on why the open acknowledgement of the relationship between these women is a significant moment in legal history.

Facts of the Case

Sreeja and Aruna were two women in a romantic relationship. Both were majors i.e. above the age of 18. Aruna had left her parental home to live with Sreeja. Aruna’s parents filed a missing person complaint with the police, which resulted in the police taking Aruna into custody and producing her before a judicial magistrate. The custody was illegally in this case, she should have been asked to present herself before a magistrate for the recording of her statement. In those proceedings, Aruna clarified that she was living with Sreeja of her own volition and thus secured her liberty. However, Aruna’s parents forcibly took her with them after the hearings and admitted her to a mental hospital. The hospital was not ready to release her without a court order. Thus, the present proceeding.

Decision and Reasons of the Court

The court found that Aruna was under confinement in her parental home against her will. The court reasoned that regardless of the relationship between the women, Aruna was an adult, and therefore, at liberty to make a choice about where and with whom she wanted to live. The court could have stopped at this point but it took the opportunity to reiterate, citing the Navtej case, that sexual orientation is a natural variation of human sexuality and because 377 no longer criminalizes same sex sexual relationships, Sreeja and Aruna’s sexual relationship, lived through in the form of a live-in relationship will not, “offend any provisions of the law or become a crime in any manner.” Further, the court went on to say that, “on the other hand, if the jurisdiction vested on this court is not exercised, it will amount to permitting a violation of the Constitutional right to perpetrate.” This statement arguably signals to the fact that the legality of live-in relationships of persons in different sex sexual relationships is well established in Indian legal jurisprudence, and if the court does not find that same sex sexual relationship are eligible for the same entitlement, an Article 14 (equality) violation would occur.

The Romantic Relationship Between the Women

The most significant aspect of this case is the fact that it was openly mentioned in the judgment, and therefore, one assumes, was argued in the court, that, the women in question were involved in a romantic relationship. What had hitherto been happening in similar cases was that when 2 women would decide to live together in a romantic relationship, the parents of one of them would accuse the other of kidnapping/kidnapping with the intention of compelling marriage/abduction/illegal confinement. The legal battle, would then involve proving that the woman in question, esp. the one’s whose parents have alleged the above-mentioned crimes, is an adult, and capable of making decisions about her living situation. The romantic relationship between the 2 women would never be brought out before the court by the lawyers of the women. Partly, it was due to the uncertainty over whether 377 criminalized lesbian sex, and partly the romantic relationship was silenced because of the negativity and illegitimacy surrounding such relationships.

Ponni Arasu and Priya Thangarajah[1] have shown these very same findings in their 2009 paper. They performed a case search from 1940s-2007 of all habeas corpus matters with ‘lesbian undertones’ and found that only 2 High Court cases appeared which involved what could arguably be, women in sexual relationships. In both of these cases, the romantic nature of their relationship was not brought before the judge though the lawyers involved knew about it. What was argued was that the women were adults and therefore entitled to decide their living arrangements. I performed a case law search on Manupatra, a standard Indian legal database, with the keyword “lesbian.” This search looked for results from all Indian High Courts,  Tribunals, and the Supreme Court. Since Manupatra has case law from the pre-independence era as well, the search covered a period before 1947 and up till 2018. I found no results at all pertaining to the lesbian relationships in such legal battles i.e. to say that in court records, the word “lesbian” has never been used in a matter pertaining to live-in relationships before.

Therefore, I conclude that either: 1. Similar cases have been occurring in court but the romantic aspect has been kept under wraps for the reasons mentioned above; or 2. Cases in which the romantic aspect has been clearly mentioned are not reported cases. The third possibility that such cases have not occurred before is negatived by the fact that: 1. 2 cases have been found by Arasu and Thangarajah, and; 2. anecdotally, I have been made aware that such cases do occur and lawyers still use the strategy of classifying the women involved as adults and ‘good friends’ and as such entitled to decide with whom they wanted to live.

This means that cases which may have involved the same questions of law were being handled without acknowledging that the women are in a romantic relationship (until 2018). Therefore, I argue, that though the results of the case are not new, the manner in which they are achieved i.e. by putting in public records of the court that the women are in a same sex relationship and as such are entitled to live-in, is a significant moment in legal history, attributable to, both: 1. The growing sense of the right to legal entitlements of the LGBT community; but also, very importantly, to, 2. The reading down of S.377.

 

[1] Ponni Arasu and Priya Thangarajah, “Queer Woman and the Law: The Love that Blinds the Court” (Presented at the 2009 LASSNET Conference).

I would like to thank Dr. L. Ramakrishnan (Ramki) for pointing me to the Arasu and Thangarajah paper. Ramki is the Vice-President at SAATHII, a public health non- profit, and volunteers at Orinam, a volunteer collective with extensive internet resources on the queer movement in India.