New Delhi: Courts across India seem to have overtaken the rest of society when it comes to progressive views about same-sex relationships.
The latest instance of this came last month when the Kerala High Court ordered that a lesbian couple, 22-year-old Adhila Nassrin and 23-year-old Fathima Noora, could live together despite opposition from their families.
The court’s ruling on 31 May — coincidentally, a day before Pride Month began — came after Nassrin filed a habeas corpus writ petition, which protects against unlawful and indefinite imprisonment.
“The police and other government machinery are often used by disapproving families to keep couples apart. [In such cases], courts have stepped in where government has failed to,” said senior advocate Saurabh Kirpal to ThePrint. “This has given courage to a large number of queer couples to live their lives freely and openly.”
Kirpal was a counsel in the case that led to the decriminalisation of consensual gay sex in India in 2018.
The two Kerala women, who met as school students in Saudi Arabia, had been together for about four years and had recently decided to live together, to which their family members had allegedly responded with rage and threats.
On 19 May, the women had sought refuge at the Vanaja Collective, an NGO in Kozhikode that works for LGBTIQ+ and other marginalised groups. The couple stayed there “for some days”, the petition said, but “the police intervened” after their relatives traced them there. Nassrin’s family then took the women in for a few days, but then Noora’s relatives arrived and forcibly took her away.
In an interview with the Kerala news outlet Onmanorama, Nassrin claimed that she had been assaulted by Noora’s parents. Further, she suspected her “abducted” partner was being compelled to undergo illegal “conversion therapy” to change her sexual orientation.
In her petition, Nassrin had requested that Noora be produced before the High Court. On 31 May, a division bench of Justice K. Vinod Chandran and Justice C. Jayachandran conducted the proceedings in-camera, with only the women reportedly present in the courtroom.
During the hearing, Noora expressed her desire to go with Nassrin, leading the court to conclude that there was “no reason to hold them back” given that both were consenting adults.
Nassrin and Noora’s story is not an isolated one. Court orders from across the country show a pattern of families opposing same-sex relationships, the young people seeking recourse in the law, and judges speaking up in favour of couples’ right to be together.
“The police will also hopefully think twice before going after a consenting couple, knowing that the courts are watching over their shoulders,” Kirpal added.
A turning point
In December last year, a gay couple from Telangana enjoyed an intimate wedding ceremony. They exchanged rings, although there was no dotted line to sign to make the union ‘official’.
But while same-sex marriage is not legally recognised in India, there is no statutory or constitutional provision restricting it either.
There is still some way to go in guaranteeing rights and protections to same-sex couples, but the law in India took a giant leap on 6 September 2018 with the Supreme Court’s landmark decision in Navtej Johar.
This judgment not only struck down a colonial-era law that criminalised homosexuality, but also disavowed a 2013 apex court ruling that had upheld Section 377 of the Indian Penal Code.
While making the widely lauded 2018 ruling, then Chief Justice of India Dipak Mishra had noted: “There must not be any regression of rights. In a progressive and an ever-improving society, there is no place for retreat. The society has to march ahead.”
How much society has marched ahead is debatable, but where the law once made criminals out of those in same-sex relationships, the courts can now offer succour.
The Navtej Johar judgment led to the filing of multiple petitions across India, with couples seeking police protection in cases of familial intolerance. In most cases, this has been granted, although there have been some rare exceptions.
‘Tradition’ vs. courts
Less than a month after the Navtej ruling, a young lesbian couple approached the Delhi High Court seeking protection since they perceived a threat to their lives from their parents.
The women had disclosed their relationship emboldened by the 6 September 2018 SC verdict, but did not get the response they had desired from their families. The Delhi HC, however, came to the rescue and directed the police to offer the women the protection they were seeking.
Also in October 2018, the Kerala High Court responded to a habeas corpus petition and said that a lesbian couple were entitled to live together.
“This court cannot find that the ‘live-in relationship’ between the petitioner and the alleged detenue will in any manner offend any provisions of law or it will become a crime in any manner,” the Kerala HC had noted.
In the order, the Kerala HC had recalled the SC’s observations in an earlier verdict that “attaining the age of majority” entitled a person “to make his/ her choice”.
“Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State,” the court added.
There are many similar stories — of courts providing relief in cases where families have threatened the liberty and life of their children over same-sex relationships.
For example, Sandeep K.C. and his partner Bhupinder, both residents of Ludhiana, wanted to live together. However, Bhupinder’s parents disapproved of the relationship and thought of it as a “sin”.
Fearing a threat to their lives, they approached the Punjab and Haryana High Court in 2019, seeking police protection. The HC declined to comment on the “nature of the relationship” but did order the Ludhiana Police to provide protection.
Another Uttarakhand High Court order from December last year took a more overt stand in favour of a gay couple who claimed they were being “continuously” threatened “with dire consequences” because of their desire to stay together.
Directing the court to grant the men protection, the court asserted: “Persons, who are major, have a fundamental right to choose their own life-partners, despite the opposition voiced by the family members.”
“Safeguarding the safety of same sex couples is the responsibility of the government because they are, after all, equal citizens of the country. Even if same sex marriage is not recognised, all the judgments say that any two adults should be able to live together without any fear,” advocate Saurabh Kirpal said.
Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint
(Edited by Asavari Singh)