Madras High Court: In a Habeas Corpus petition alleging illegal detention of the detenue by her family, the Division Bench of G. R. Swaminathan* and V. Lakshminarayanan, JJ., opined that even though same-sex couples cannot marry but they still have the right to form families. The Court thus allowed the petition and set the detenue at liberty.
The Court relied on Deepika Singh v. Pgimer, Chandigarh, (2023) 13 SCC 681, wherein the Supreme Court had opined that the predominant understanding of the concept of ‘family’ both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children, ignores the fact that many circumstances lead to a change in one’s familial structure, and that many families do not conform to this expectation to begin with. “A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”
Background and Analysis of Same-Sex Couples’ Right to form Family
The Court began by citing the Supreme Court in Devu G. v. State of Kerala, (2023) 12 SCC 829, wherein it had set clear guidelines for the courts for handling habeas corpus and protection petitions. The guidelines, while talking about LGBTQ+ individuals and same-sex couples had directed swift and empathetic resolution, ensuring their free will, safety, and privacy. The courts were directed to avoid biases, prevent undue influence, and grant immediate police protection, when necessary, while strictly prohibiting any attempts to alter a person’s sexual orientation or gender identity.
The High Court keeping in mind the above guidelines, interacted with the detenue and noted her to be a qualified young woman in a relationship with the petitioner, being detained by her family against her will and wanting to go back to her partner. The Court upon interacting with the detenue found her to be of sound mind and pointed that it would be wrong to accuse the detenue of being a drug addict. The Court also took note of the detenue’s sexual orientation as revealed by her.
The Court pointed out that Indian society is still conservative despite judgments like NALSA v. Union of India, (2014) 5 SCC 438 and Navtej Singh Johar v. Union of India, (2018) 1 SCC 791. The Court also cited the Yogyakarta principles on the application of International Human Rights Law in relation to Sexual Orientation and Gender Identity, 2006. The Court noted that these principles talk about the universal enjoyment of human rights irrespective of sexual orientation or gender identity which include the right to privacy, security, and found family of their choice. The Court further noted the decision of the Supreme Court in NALSA (Supra) wherein the Supreme Court had upheld the Yogyakarta principles.
The Court relied on Supriyo v. Union of India, 2023 SCC OnLine SC 1348, wherein Supreme Court had held thatthat same-sex couples do not have the right to marry. However, taking note of Deepika Singh (supra), the Court noted that same-sex couples can form families. The Court stated that:
“Marriage is not the sole mode to found a family. The concept of “chosen family” is now well settled and acknowledged in LGBTQIA+ jurisprudence. The petitioner and the detenue can very well constitute a family.”
The Court reiterated that: “NALSA and Navtej Johar have declared that sexual orientation is a matter of individual choice and that it is one of the most basic aspects of self-determination, dignity and freedom. It is an integral part of personal autonomy and self-expression and falls within the realm of personal liberty guaranteed under Article 21 of the Constitution”.
Taking note of other relevant decisions of the Supreme Court like Shakti Vahini v. Union of India, (2018) 7 SCC 192, Asha Ranjan v. State of Bihar, (2017) 4 SCC 397, and Shafin Jahan v. Asokan KM, (2018) 16 SCC 368, the Court observed that even if these judgments were rendered in the context of inter-caste and inter-religion marriages their ratio would apply with equal force to same-sex relationships too.
The Court showed its reluctance in using the word ‘queer’. On this point, the Court stated that, “Any standard dictionary defines this word as meaning ‘strange or odd’. Queering one’s pitch means spoiling the show. To a homosexual individual, his/her/their sexual orientation must be perfectly natural and normal. There is nothing strange or odd about such inclinations. Why then should they be called as queer?”.
Placing reliance on the afore-stated Supreme Court judgments and the Yogyakarta Principles, the Court concluded that detenue cannot be held against her wishes and is entitled to go with the petitioner. Further, the Court censured the police for their inaction and insensitivity to the SOS messages sent by the petitioner. The Court held that: “The Yogyakarta Principles affirm the right to security of the person concerned. When there is a right, there has to be a correlative duty. We hold that the Government officials, in particular the jurisdictional Police, have a duty to expeditiously and appropriately respond whenever complaints of this nature are received from the members of the LGBTQIA+ community”.
[M. A v. Superintendent of Police, Vellore, H.C.P.No.990 of 2025, decided on 22-05-2025]
*Judgment by Justice G. R. Swaminathan
Advocates who appeared in this case:
For the petitioner: M.A. Mumtaj Surya
For the respondents: E. Raj Thilak, Addl. Public Prosecutor
Buy Constitution of India HERE
