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S. Sushma and Anr. v. Commissioner of Police, Chennai and Others WP No. 7284/2021

A COUPLE, THE PARENTS, AND THE POLICE

In early June, 2021, the Madras High Court gave a truly unique order. The occasion arose when a lesbian couple ran away from their parental homes. As is often seen in such cases, the parents of the two women filed missing complaints with the police. The police interrogated the couple at their residence. They failed to close the case upon learning that the women were adults and had left their homes of their own volition, once again, not an uncommon occurrence in such cases. Feeling threatened for their safety both by the police and their parents, the women filed for a writ of mandamus before the Madras High Court. A writ of mandamus is an instrument which directs a public body to perform its duty. They prayed for a writ directing the police not to harass them and to protect them from threat and danger from their parents. The government advocate who represented the police confirmed that the police will be instructed to provide protection, no longer interfere with the petitioners, and close the missing cases immediately. The court ordered accordingly. 

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Poonam Rani and Ors. v. State of UP and Ors. Writ C No. 1213 of 2021

1.PROTECTION ORDERS

On the 20th of January, 2021, a Division Bench of the Allahabad High Court granted a protection order to two women in a live-in relationship. I have previously argued[1] that protection orders are privacy enhancing tools for queer women and transgender men in live-in relationships. Recorded cases show that live-in relationship related litigation is a unique category of litigation that queer women and transgender women face in the queer community. In this blog, I will discuss why protection orders can be an important legal instrument for queer women in live-in relationships and then specifically discuss the case at hand and the protection order granted therein. Protection orders can be utilized not just by queer couples but more generally by members of the queer community.

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Chinmayee Jena v. State of Odisha and Ors. Writ Petition (Criminal) 57/2020

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.

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Madhu Bala v. State of Uttarakhand and Others Habeas Corpus Petition No. 8 of 2020

FACTS OF THE CASE

On the 12th of June, 2020, a single judge bench of the Uttarakhand High Court reiterated the legal position that a consensual relationship between persons of the same sex is not barred by law. This was a case of a live-in-relationship between two women, whose relationship was once again, openly acknowledged in court. In a previous blog, I had discussed that the open acknowledgment in court of a romantic relationship between two women was certainly something new to be seen after the Navtej Judgment in 2018. The first case to do so was Sreeja S. v. Comm. of Police, decided a few weeks after the Navtej Johar case. The present case follows in this line of cases. In this blog post I will demonstrate that the court makes remarkably strong theoretical points about the meaning of the fundamental right to liberty, which it equates with the exclusive right of an adult individual to decide with whom they want to live (among other things). However, the court severely waters down this right in application in this case. They do not implement the declaration made by one of the women in the relationship that she wants to continue to live with her partner because she makes this statement in the absence of her family. This raises the question: is this because of the deep-seated paternalism and homophobia of the legal system, or is it because the legal procedure requires the presence of her family members in this case. Even if this is the case, does the procedure itself suffer from paternalism and homophobia?

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Monu Rajput v. State and Ors. W.P. (Crl.) 1879/2019 and Crl. M.A. 30835/2019

Habeas Corpus Petition in Delhi High Court

On the 12th of July, 2019, a division bench of the Delhi High Court decided whether a habeas corpus petition filed by a transgender man (Monu) to set his romantic partner at liberty from her family members, could be allowed. The petition was filed against the State to ensure that if the detenue was indeed found to be detained against her will, she be at once set at liberty. Summarily, the court rejected the petition.

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Shampa Singha v. The State of West Bengal & Ors. WP 23120(W)of 2018

On the 29th of January, 2019, a division bench of the Calcutta High Court applied the Navtej Johar decision to a lesbian couple, holding that consensual co-habitation and intercourse between adults of the same sex does not fall within the ambit of S.377. As in the Sreeja case, the sexual relationship between the two women involved was openly mentioned in the court. The facts of the case are not entirely clear but it is evident that the writ is filed by one of the partners. Presumably, one of the partners, had returned to her mother and the petitioner partner had filed a writ alleging that the mother was holding her partner captive. The other partner, who had hitherto been residing with her is now inclined to stay with her own mother. There are three facets which are interesting to note about this case:

  1. Article 21

Following Navtej Johar, this case also finds that the right to life under Article 21 includes an inherent right to determine, by oneself, one’s sexual orientation and sexual partner. This choice is inherent under Article 21 even if the choice is not made for procreation. Additionally, the court notes that not only is this right inherent under Article 21, it is also essential for the enjoyment of the life and liberty guaranteed under Article 21.

  1. Constitutional Morality

The court also notes that our scheme of constitutional morality does not permit objections of religion or personal morality to whittle down this inherent right (of orientation and choice of partner). It is unclear why the court specifically mentions religion as an impermissible restriction on the abovementioned right. One can conjecture that perhaps in the argumentation stage before the court, one’s religious beliefs were pleaded as a ground to deny cohabitation of the two women involved.

  1. Psychological Test

Finally, the court notes that the partner of the petitioner, whom the court calls a “victim” for unexplained reasons, has been assessed for psychological soundness. It is unclear why the court mentions it. It is also unclear whether the court ordered this test or whether this test has been performed due to extant facts of the case. Since the judgment does not summarize the facts or the arguments, it is hard to determine the appropriateness of this psychological test. However, at the outset, it can be said that a psychological test does prima facie seem out of place in this kind of case which involves two majors who want to exercise their right of whether or not to live together arguably, though not explicitly, protected under Article 21 in this case. The Navtej judgment has clearly stated that adults have a right to consensual sexual intercourse with a person of their choice regardless of sex. To avail this right, that judgment has not forwarded a requirement of psychological testing.

I am grateful to Dr. L. Ramakrishnan (Ramki) for telling me about this case. 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.