A few weeks after a Constitution bench of the Supreme Court decriminalised homosexuality, the Kerala High Court, in a decision which could have a significant bearing on the rights of LGBTQ people, came to the rescue of a lesbian couple and upheld their right to live together.
A Division Bench of Justices CK Abdul Rehim and R Narayana Pisharadi held that two women, Riju*and Maya*(24), who are in a relationship, have the right to live together as a couple even though the present Indian legal structure does not permit them to enter into wedlock. In doing so, the court not only upheld an adult woman’s right to decisional autonomy, but also provided a boost to the civil rights of homosexual couples, which are yet to be formally recognised in Indian law.
Riju, who works as a sales personnel in Kuwait, met Maya, a post-graduate in Economics and a civil services aspirant, over a gay dating site a couple of years ago, and thereafter decided to spend the rest of her life with her. Maya left her home and moved in with Riju in Kollam, upon which her parents filed a police complaint under Section 57 of the Kerala Police Act, which allows the police to register a cognizable offence and take action to locate the missing person.
Maya was arrested and brought back to her parents, but the Judicial First Class Magistrate-II, Neyyattinkara set her at liberty on 14 August this year. Despite the court order, Maya’s parents forcibly took her away and got her admitted to the government mental hospital at Peroorkada. Thereafter, in order to secure her partner’s liberty, Riju moved the High Court by way of a writ petition, advised and aided by Advocate KK Preetha of the Human Rights Law Network, an advocacy and research organisation.
The court framed two issues – can a same-sex couple live together? And, secondly, whether the liberty of a woman who has attained majority and can arrive at her own decisions, be curtailed by her parents?
Regarding the first issue, the court relied on the Supreme Court’s Constitution bench decision in the Navtej Singh Johar case, decided on 6 September this year, in which the legality of gay sex was upheld, despite a high degree of social opprobrium to such relationships.
The high court affirmatively quoted from the said ruling:
“Constitutional morality cannot be martyred at the altar of social morality. The veil of social morality cannot be used to violate the fundamental rights of even a single individual, for the foundation of constitutional morality rests upon the recognition of diversity that pervades society.”
Thus, the court refused to go into whether the relationship between Riju and Maya was a legal one, for the legality of such relationships has already been granted sanction by the apex court.
Furthering LGBTQ Rights
Regarding the issue of living together, the bench relied on the Supreme Court’s 20 April 2018 decision in the Nandakumar case, in which it was held that a couple had the right to live together even if they were not legally permitted to enter into wedlock. Such relationships have been recognised by the legislature and granted sanction in law, the court noted.
This is a big step, in the right direction, because although under prevailing Indian laws, “marriage” can only be between a man and a woman, the court recognises the right of same-sex couples- male-male or female-female, to spend their lives together united as one.
As for the right of an adult woman to lead the life on the path she chooses, the high court relied on the Supreme Court’s ruling in the Sony Gerry v Gerry Douglas case to hold that “courts should not assume the role of a super guardian being moved by the (woman’s) mother’s sentiments or father’s egotism”.
Referring to the Supreme Court’s ruling in the Hadiya case, in which a Hindu woman was initially persecuted for marrying a Muslim man, the judges said :
“What is seminal to remember is that the song of liberty is sung with sincerity and the choice of the individual is appositely respected and conferred its esteemed status as the constitution guarantees.”