Madras HC says same-sex couples can form families, marriage not sole basis

In a significant affirmation of LGBTQIA+ rights, the Madras High Court has recently held that same-sex couples can constitute a family and ruled that marriage is not the only foundation for a familial unit. A bench of Justices GR Swaminathan and V Lakshminarayanan made this observation, on May 22, while allowing a habeas corpus petition filed by a woman seeking the release of her partner, who was allegedly detained by her natal family.

“The expression ‘family’ has to be understood in an expanded sense,” the court said, referencing judgements including the marriage equality case and the Yogyakarta Principles. The Yogyakarta Principles are international legal guidelines affirming that all people, regardless of sexual orientation or gender identity, are entitled to the full range of human rights.

 “While [the] Supriyo case may not have legalised marriage between same-sex couples, they can very well form a family. Marriage is not the sole mode to found a family. The concept of ‘chosen family’ is now well settled and acknowledged in LGBTQIA+ jurisprudence. The petitioner and the detenue can very well constitute a family,” the court noted in its order.

The Supriyo @ Supriya Chakraborty v Union of India case, which is widely known as the marriage equality case, was a landmark 2023 Supreme Court judgement where the top court refused to legalise same-sex marriage, but acknowledged the rights of queer individuals to form families and directed the government to consider civil union rights.

The HC was hearing habeas corpus petition, filed by the partner of the 25-year-old detenue. The detenue, when produced in court, stated unequivocally that she is a lesbian and in a consensual relationship with the petitioner. She informed the court that she had been forcibly taken home by her parents, beaten, and subjected to rituals to “make her normal.” She expressed a clear desire to return to her partner and said she feared for her life.

The court noted that the detenue's mother had broken down during the hearing and accused the petitioner of leading her daughter astray. However, the judges emphasised that the detenue, being an adult, had the right to choose her partner. “Not every parent is like Justice Leila Seth,” the court observed, recalling the late judge’s support for her gay son and quoting from her writings that condemned the criminalisation of homosexuality.

The bench further said it felt discomfort in using the word “queer” to describe homosexual persons. “To a homosexual individual, his/her/their sexual orientation must be perfectly natural and normal. There is nothing strange or odd about such inclinations. Why then should they be called as queer?” the court asked.

Originally used as a slur to demean those who deviated from heterosexual and conservative gender norms, the word “queer” was reclaimed in the late 20th century by activists and scholars as an inclusive political identity that challenges rigid labels. Today, it is widely accepted within the LGBTQIA+ community for its flexibility and ability to encompass a broad spectrum of sexual and gender identities.

The judges also censured the police for their “rank inaction” in responding to SOS messages from the petitioner. Despite written complaints to multiple police departments about the detenue's illegal confinement, no action was taken until the habeas corpus petition was filed. 

“We hold that the government officials, in particular the jurisdictional police, have a duty to expeditiously and appropriately respond whenever complaints of this nature are received from members of the LGBTQIA+ community,” the court said.

Citing landmark rulings including NALSA (which affirmed individuals’ right to self-identification of their gender), Navtej Singh Johar (which decriminalised consensual same-sex relationships), and Shakti Vahini (upheld the right to marry by choice as a fundamental right), the bench reiterated that sexual orientation is a matter of individual choice and falls within the ambit of personal liberty protected under Article 21 of the Constitution.

Concluding the order, the court set the detenue at liberty, restrained her family from interfering with her personal life, and issued a continuing mandamus to the jurisdictional police to provide protection to both women as needed.