Odisha HC allows same-sex couple to live-in, says ‘love knows no bounds has expanded its bounds’

The Odisha High Court has allowed a same-sex couple to continue a live-in relationship, extending state protection to them. The order was passed on Monday by a division bench of Justices SK Mishra and Savitri Ratho, while hearing the habeas corpus petition of a 24-year-old transman.

The petitioner, Chinmayee Jena alias Sonu Krishna Jena, preferred to be addressed as he/his. He exercised his rights to self-gender determination under the Supreme Court’s 2014 judgment in NALSA vs Union of India case, which directed the Centre and state to grant legal recognition for the third gender and ensure there is no discrimination against them. He told the court his partner was forcibly separated by the latter’s mother and uncle in April and they were trying to arrange her marriage.

Jena stated that the legislature has acknowledged live-in relationships, irrespective of the gender, outside marriage by giving rights and privileges under the provisions of the Domestic Violence Act, 2005.

The judges wrote two separate but concurrent orders while allowing the petitioner to stay with her partner. “The state shall provide all kind of protection to them, which are enshrined in Part-III of the Constitution of India, which includes the right to life, right to equality before law and 18 equal protection of law,” Mishra said. “There is hardly any scope to take a view other than holding that the petitioner has the right of self-determination of sex/gender and also he has the right to have a live-in relationship with a person of his choice even though such person may belong to the same gender as the petitioner.”

The court took note of the apprehensions of the woman’s mother, who urged the judges to ensure her daughter’s well-being and safety. “We further direct that the petitioner shall take all good care of the lady as long as she is residing with him and that the Opposite party numbers 5 and 6 and the sister of the lady would be allowed to have a communication with her both over phone or otherwise,” the order said. “They have the right to visit the lady in the residence of the petitioner...The lady shall have all the rights of a woman as enshrined under the Protection of Women from Domestic Violence Act, 2005.”

Meanwhile, Justice Ratho said that freedom of choice was available to the two, who have decided to live together. “The oft quoted maxim – love knows no bounds has expanded its bounds to include same sex relationships,” she said. “A reading of the Supreme Court judgements will indicate that individual rights have to be balanced with social expectations and norms. The freedom of choice 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.”

Ratho noted that the partner’s mother had brought up two daughters as a single parent and was, therefore, rightly worried about their future. “But on account of the possibility of social stigma or mental turmoil caused to them, the right to select her life partner cannot be stifled or negated,” the order said. She even said the petitioner’s partner should not forget her duty towards her mother and younger sister, and to look after their financial, social and emotional well-being.

“Law is a reflection of current social values or norms,” Ratho said. “Social norms undergo change with time and law keeps abreast with the same courts recognise these changes and rule on the same.”

The judges also stated that although the woman will join the company of the petitioner on account of a judicial intervention, there is no bar on her in case she wants to part ways with the petitioner or go back to her mother. “We hope and trust that the petitioner and his partner will lead a happy and harmonious life so that their family members have no cause for worry and society has no excuse to raise a finger at them,” the court said.