“…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.”
– Justice S.K. Mishra
The Bench comprising of Justices S. K. Mishra & Savitri Ratho of the High Court of Orissa, Cuttack held that the petitioner and his partner have the right to decide their sexual preferences including the right to stay as live-in partners[i], while taking into account the judgments of NALSA vs Union of India : (2014) 5 SCC 438, Anuj Garg vs Hotel Association of India : (2009) 3 SCC 1 and, Navtej Singh Johar vs. Union of India, (2008) 10 SCC 1.
The petitioner Chinmayee Jena, originally belonging to female gender, exercising his rights of self-gender determination now prefers to be addressed as he, (aged 24 years) approached the Court with the grievance that his life partner, “Rashmi” (not the original name) has been forcibly taken away by her mother and uncle. He has therefore sought appropriate orders before the Bench of Justices S. K. Mishra & Savitri Ratho and filed an application under Article 226 and 227 of the Constitution of India, 1950.
The learned counsel for the petitioner produced a joint affidavit signed by the live-in couple sworn before the Executive Magistrate, Bhubaneswar on 16.03.2020 and argued that both of them fell in love with each other in 2011 and later they decided to stay together. On 9th April 2020, the mother and uncle of the petitioner’s partner came to the house of the petitioner and forcibly took the petitioner’s partner against her will.
The Protection of Women from Domestic Violence Act, 2005, acknowledges live-in relationship by giving rights and privileges to the couple who have attained the age of majority. The learned counsel for the petitioner contended that, though the parties who are in a ‘live-in relationship’ belonging to the same gender may not competent to enter into wedlock, but they still do have the right to live together.
Justice Mishra in this judgment reiterated that, the recognition of one’s gender identity lies at the heart of the fundamental right to dignity and freedom guaranteed under the Constitution. Quoting Hon’ble Sri Justice K.S.P. Radhakrishnan in Anuj Garg vs. Hotel Association of India, (2008) 3 SCC 1, where the Hon’ble Supreme Court had stated that the personal autonomy includes both the negative right, of not to be subject to interference by others and positive rights, of individuals to make decisions about their life, to express himself and to choose what activity to take part in; pointed out that self-determination of gender is an integral part of personal autonomy and self-expression.
Justice Savitri Ratho observed that freedom of choice is available to the two individuals in this case who have decided to have a relationship and live together and society should support their decision. She also mentioned that while exercising her right to reside with the partner of her choice, Rashmi should not forget her duty towards her mother and younger sister i.e. to look after their financial, social and emotional well being.
Making their stance clear, the Bench informed the petitioner that apart from taking care of Rashmi, he should not compel or coerce her to leave the society against her will and also that their families and society have no right to infringe on their right to life.