The Leaflet spoke to stakeholders involved in proposing the idea of the deed of the familial association and a lawyer who said that the Madras High Court Order may turn out to be a stepping stone for the Tamil Nadu government to formulate a policy for the protection of gender and sexual minorities.
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IN the post Supriyo judgment India, will a recent Order of the Madras High Court provide a new ray of hope to non-heterosexual couples in their struggle for equality and dignity?
On October 17, the Supreme Court, in Supriyo@Supriya Chakraborty and Another versus Union of India, while deciding on a batch of petitions seeking marriage equality for non-heterosexual couples, went somewhat beyond the mandate of the case and declared that there was no fundamental right to marry.
Exactly a month later, on November 17, Justice N. Anand Venkatesh of the Madras High Court has suggested that the Tamil Nadu government must recognise the 'deed of familial association' as a right of partners to choose to form or retain families with such persons. That is, to recognise bonds of care between two individuals.
“The petition argues that the deed of familial association will have a limited purpose: to protect non-heterosexual couples from harassment and violence, including from their biological families.
This suggestion was in response to a petition filed by a gay man, Prasanna J., represented through advocate B.S. Ajeetha.
Interestingly, while the Supreme Court in Supriyo held that there was no fundamental right to form (civil) unions, there was unanimous consensus over acknowledging the right to be in a relationship.
The fundamental difference between the two is that while certain rights and social benefits accrue from civil unions, no such rights arise from the status of being in a relationship.
In the petition, Prasanna J. argues that the deed of familial association will have a limited purpose: to protect non-heterosexual couples from harassment and violence, including from their biological families.
Such a deed would also ensure that couples would not be discriminated against in gainful employment and housing, and in their assimilation in the society.
To this, the court held: "The proposal that has been brought forth by the petitioner, prima facie sounds convincing. This is more so, since the [Supreme] Court in the Supriyo's case, has categorically recognised the right of choice of two persons to have a relationship.
"In view of the same, such persons must have protection to live in society without being disturbed or harassed. For that purpose, the deed of familial association will at least give some respect and status to such a relationship."
Notably, the Social Welfare and Women Empowerment department of Tamil Nadu is in the process of finalising a policy for the welfare of gender and sexual minorities in the state.
In February this year, an 11-member committee was constituted in this regard.
The petitioner Prasanna told The Leaflet that the court Order is just a stepping stone in the right direction. He said that it now depends on the Tamil Nadu government on how they want to tailor legislation in light of the Order.
He added: "We want some form of recognition from the government saying that this is a legitimate relationship between them."
Prasanna clarified that Supreme Court judgments such as Supriyo only 'acknowledged' the right to be in a relationship and do not recognise it.
The Leaflet also spoke to Ajeetha who clarified the legal framework of the deed of familial association.
Ajeetha told The Leaflet that deeds seem like a viable option, especially after the Supriyo judgment because one cannot go beyond what the highest court in the land has said.
Explaining this, she said that neither the Supriyo judgment nor the law bars non-heterosexual couples from entering into a contract to register their commitments.
Ajeetha illustrated three situations in which a deed of familial association could be helpful.
One, in cases of police harassment and violence faced by couples from natal families; two, in cases where the couples are not able to access housing facilities because of their sexual orientation; and three, in situations of medical emergency.
“Ajeetha told The Leaflet that deeds seem like a viable option, especially after the Supriyo judgment because one cannot go beyond what the highest court in the land has said.
The Leaflet also spoke to Advocate R. Kanmani of the Madras High Court on this Order (Kanmani is not related to this case).
She said that the deed of familial association may turn out to be particularly helpful in cases of police violence faced by sexual and gender minorities.
Explaining this further, Kanmani said: "Every time a non-heterosexual couple faces violence at the hands of police, an activist has to get involved to get the couple out of trouble.
"At a very fundamental level, if you produce a document before the police which says that your relationship has a legal status, then the police cannot violate it. This is better than citing a Supreme Court judgment every time."
Offering clarification on the third illustration (situation of medical emergency), Ajeetha said that this ground is not mentioned in the petition but they are looking forward to adding it to the petition.
She said: "In future, we want to extend deeds of familial association to cases of medical emergencies. So, in cases where one of the partners is sick, the other partner would be in a position to sign a consent form because the deed recognises them as a chosen family."
Kanmani also stated that the law does not even allow partners to get the dead bodies of their deceased partners unless their relationship is recognised in the eyes of the law. In such situations, the deed of familial association is going to work like a panacea, she asserted.
Also read: Marriage equality judgment: An explainer
On being asked about the legal process of ending a deed of familial association, Ajeetha told The Leaflet that the contracts could be framed in a manner of a prenuptial contract where grounds of parting and the rights, entitlements or liabilities arising in such situations could be laid down.
Adding to that, Ajeetha said that such contracts should not be stereotyped because heterosexual couples too have differences of opinion and that has been the very basis of developing the concept of divorce.
To a query whether the legality of such deeds could be challenged under the Indian Contract Act, 1872 on the grounds of public morality, Ajeetha said: "Such agreements are not per se illegal. The deed of familial association is not barred by any kind of public morality."
Prima facie, the deed of familial association intends to protect the positive aspect of the right to enter a relationship which is through giving the commitment some kind of legal status.
Whereas the negative aspect which follows from this is that there cannot be any unnecessary interference in this relationship by the State.
But does giving such recognition a different colour change the consequences which flow from the Supriyo judgment?
It does, although gradually, for the simple reason that despite the Supreme Court in Navtej Singh Johar versus Union of India (2018) and Supriyo acknowledging that the right to be in a relationship is protected as a consequence of autonomy and privacy, its legal dimension in terms of its implementation has not been explored substantially.
“Kanmani also stated that the law does not even allow partners to get the dead bodies of their deceased partners unless their relationship is recognised in the eyes of the law.
In fact, the unanimous recognition of the Supreme Court in Supriyo that gender and sexual minorities continue to face discrimination in both public and private spaces does not in reality give the community any kind of protection in the absence of such discrimination being regulated by the State.
Also read: Unravelling the marriage equality judgment
Therefore, what the deed could do, to a limited extent, is to offer legislative protection which is what Prasanna's case essentially highlights.
In his petition, Prasanna says that he and his partner had to buy a home because of the continuous interference of the neighbours questioning their relationship. Further, he could not share the loan with his partner because their relationship has "no legal standing".
As per the precedents, they cannot be discriminated against by their neighbours just because they are in non-heterosexual relationships. But this is exactly what the practical reality is. The protection offered by the courts is in the form of recognition and not regulation.
Another case that might allow the concept of deed to be explored is the judgment of the British House of Lords in Ghaidan versus Godin-Mendoza (2004).
Although this is a landmark case for understanding the concept of dynamic construction of a statute, the facts of the case become relevant.
In this case, the tenancy law allowed the surviving spouse of the deceased tenant to become a tenant by succession. However, the deceased tenant was in a homosexual relationship with his partner and the surviving spouse could not be entitled to the succession of the flat as a member of the original tenant's family. This was before the country passed the Marriage Same Sex Couples Act, 2013.
The court found this discriminatory, violating the European Convention on Human Rights. Most importantly, it embraced that couples living together in a close and stable heterosexual relationship are the same as those living in non-heterosexual relationships.
The deed of familial association could be considered as a part of the right to found a family protected under Article 24 of the Yogyakarta Principles.
Also read: Marriage equality judgment: A Suresh Koushal moment for gender and sexual minorities in India
Speaking on the nature of the deed, Prasanna told The Leaflet that the document neither extends to recognising marriage nor civil unions.
He said: "This is basically to explore if the partners who are dependent on each other could get some socio-economic benefits."
The concept of deed of familial association was first propounded by Tiju Thomas, associate professor at Indian Institute of Technology, Madras.
“The deed of familial association could be considered as a part of the right to found a family protected under Article 24 of the Yogyakarta Principles.
Speaking to The Leaflet, Thomas says that the deed basically intends to protect bonds of care and gives them some legal sanctity. He added that the deed is not just limited to non-heterosexual couples.
The deed could also be registered in cases where a family wants to be the primary caregiver of a widower.
In the Indian legal framework, Thomas explains the deed as a contractual obligation based on the foundation of the right to life and freedom of association.
He mentioned that the deed does not violate any of the existing marriage laws and that is why it becomes a viable option on which consensus can be reached.
Speaking on the scope of the deed, Thomas said that it depends on the committee established by the Tamil Nadu government. For now, he said that the deed may have a limited purpose and as and when society understands the ground reality better, the scope of the deed could be extended.
“In the Indian legal framework, Thomas explains the deed as a contractual obligation based on the foundation of the right to life and freedom of association.
Thomas is a member of the committee constituted by the Tamil Nadu government. He told The Leaflet that the committee has surveyed and collected information from hundreds of stakeholders in Tamil Nadu.
The data collection is almost complete and it is expected that the policy will be out soon.