Ori HC | Same-sex couple have a right to live together outside wedlock; Rights of a woman enshrined in Protection of Women from Domestic Violence Act, 2005 to apply on the “lady” in the relationship

Orissa High Court: A Division Bench of S. K. Mishra and Savitri Ratho, JJ. allowed a same-sex couple to live in together and to provide them with all kinds of protection as enshrined in Part III of the Constitution.

The facts are that the petitioner who was originally a female has now chosen by the right of self-determination to be identified as he/him before the court. The petitioner and the daughter of respondent  5 are major who fell in love and are now living together as a couple with mutual consent since 2017. But, the respondents have forcibly taken her from the petitioner’s resident and now want to marry her off to someone else against her will. Hence this instant writ petition of habeas corpus under Articles 226 and 227 have been filed to demand the appearance of his partner before the court.

Counsel Clara D’ Souza, S. Soren and H.B. Dash represented the petitioner’s side and Counsel Saswata Pattnaik and Arun Kumar Budhia represented the respondent’s side.

The court spoke to the petitioner’s partner who agreed to the version of the petitioner and prayed the court to allow her to live with the petitioner at the earliest.

The Court relied on various judgments, important being National Legal Services Authority v. Union of India, (2014) 5 SCC 438 and held:

“Everyone, regardless of sexual orientation or gender identity, is entitled to the enjoyment of privacy without arbitrary or unlawful interference, including with regard to their family, home or correspondence as well as to protection from unlawful attacks on their honour and reputation. The right to privacy ordinarily includes the choice to disclose or not to disclose information relating to ones sexual orientation or gender identity, as well as decisions and choices regarding both ones own body and consensual sexual and other relations with others.”

 The court also relied on Anuj Garg v. Hotel Association of India, (2008) 3 SCC 1 and Navtej Singh Johar v Union of India, (2018) 10 SCC 1 wherein the law has been settled regarding the right of a person for self-determination of his/her sex/gender and consequently the right to have a live-in relationship.

 In the case of Shakti Vahini v Union of India, (2018) 7 SCC 192 it was observed

“The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. True it is, the same is bound by the principle of constitutional limitation but in the absence of such limitation, none, we mean, no one shall be permitted to interfere in the fructification of the said choice.”

 Keeping in mind the observations stated above, the court reiterated that the couple has a 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.

In view of the above, writ petition stands disposed off.[Chinmayee Jena v. State of Odisha, 2020 SCC OnLine Ori 602, decided on 24-08-2020]


*Arunima Bose, Editorial Assistant has put this story together

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