Recognising and reiterating that the concept of chosen family is now well-settled and acknowledged in LGBTQIA+ jurisprudence, the Madras High Court has allowed a 25-year-old lesbian, who was detained by her family against her will, and to go with her female partner as she is entitled to do the same as per her will reported the New Indian Express.
This order was passed by a division bench of justices G R Swaminathan and V Lakshminarayanan on a habeas corpus petition (HCP) filed by the woman’s partner, hailing from Tirupattur district, praying for an order to liberate the woman from being illegally detained by her parents at Gudiyatham in Vellore district.
The bench also pulled up the police for failing to respond to the urgent messages sent by the petitioner and forcing the woman to go with her parents. Further, the bench slammed police attached to Gudiyatham in Vellore district, Reddiyarpalayam in Puducherry and Jeevan Beema Nagar in Karnataka for failing to respond to the SOS messages sent by the petitioner and forcing the woman to go with her parents. Going further and expressing disappointment that no action was taken by the Inspector of Police in Gudiyatham, the DSP and Vellore SP despite a complaint being lodged, the bench said only after the HCP was filed, the police woke up.
We hold that the government officials, in particular the jurisdictional police, have a duty to respond whenever complaints of this nature are received, the bench noted.
The Order also observed that the Supreme Court’s order in the Supriyo @ Supriya Chakraborty v/s Union of India case may not have legalised marriage between same sex couples but they can very well form a family.
Mother of lesbian detenue is no Leila Seth, says Madras HC
“We have come to the conclusion that the detenue is entitled to go with the petitioner (female partner) and that she cannot be detained against her will by her family members,” the bench said.
It restrained the woman’s natal family members from “interfering with her personal liberty”. It also issued a “writ of continuing mandamus” to the jurisdictional police to provide adequate protection to the woman and her partner as and when required.
“Marriage is not the sole mode to found a family. The concept of a ‘chosen family’ is now well-settled and acknowledged in LGBTQIA+ jurisprudence,” the bench stated. It explained, citing the NALSA and Navtej Johar cases, that the SC has declared that sexual orientation falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.
Dealing with the statement of the lesbian woman’s mother that the petitioner had led her daughter “astray” and turned her into a “drug-addict,” the bench said it could see that the detenue is a perfectly normal-looking young woman.
The bench pointed out that the petitioner has not mentioned anywhere about the true nature of their relationship but called herself as a close friend. “We can understand the hesitation on her part. Our society is still conservative, notwithstanding (the judgment in) NALSA and Navtej Singh Johar,” it said,
The bench recalled the heart-rending letter written by Leila Seth when the Delhi HC decision to decriminalise the same-sex relationship in the Naz Foundation case was reversed by the Supreme Court. Unfortunately, she was not alive to see homosexuality be decriminalised via the historic judgment in Navtej Singh Johar Vs Union of India case, it said.
“The mother of the detenue is no Leila Seth. We could understand her feelings and temperament,” the bench said in the order. Stating that it had endeavoured in vain to impress upon her that her daughter is entitled to choose a life of her own since she is an adult, the bench noted that the law is clear and the precedents are clearer on the issue.
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