The Orissa High Court, in a significant order, held that a person had the right to be in a live-in relationship with a person of their choice even though such person belonged to the same gender as the petitioner.
The court was hearing a habeas corpus plea filed on behalf of his female partner by one Chinmayee Jena, originally of the female gender, who had in exercise of his right of self-gender determination, asserted his preference to be addressed as a male. His partner, Rashmi had been forcefully taken away from him by her parents.
A division bench of Justices S.K.Mishra and Savitri Ratho spoke with Rashmi who categorically stated before the court that she wanted to join the petitioner without any further delay.
The court relied upon the decision of the Supreme Court in National Legal Services Authority vs. Union of India holding that the recognition of one’s gender identity lay at the heart of the fundamental right to dignity.
It also referred to the decision of the top court in Navtej Singh Johar vs. Union of India where it had held Section 377 of the IPC to be unconstitutional in so far as it criminalised consensual sex between two adults of the same sex.
The High Court, thus, held that in view of the authoritative pronouncements of the Supreme Court, there was hardly any scope to take a view other than holding that the petitioner had the right to self-determine his gender as well as to be in a live-in relationship with a person of his choice even though such person belonged to the same gender as the petitioner.
The bench also directed that the State provide all manner of protection to them, as enshrined in Part-III (fundamental rights) of the Constitution of India, which included the right to life, right to equality before law and equal protection of law.
It added that the petitioner would have to take good care of Rashmi as long as she was in the relationship and that her mother and sister would be allowed to communicate with her both over phone or otherwise.
The court further directed that Rashmi have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.
Justice Savitri Ratho in her separate but concurring judgment said that a reading of the Supreme Court judgements would indicate that individual rights had to be balanced with social expectations and norms.
The freedom of choice, Justice Ratho said, is therefore available to the two individuals in this case who have decided to have a relationship and live together and society should support their decision.
“The oft quoted maxim – love knows no bounds has expanded its bounds to include same sex relationships”, said Justice Ratho.
Justice Ratho added that just because there was the possibility of social stigma or mental turmoil caused to the parents, Rashmi’s right to select her life partner, couldn’t be stifled or negated.
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