5 min readApr 5, 2024 11:37 AM IST
First published on: Apr 5, 2024 at 11:37 AM IST
The Allahabad High Court in September of last year while hearing a bail petition observed that live-in relationships were a “systematic design to destroy the institution of marriage… destabilise the society and hinder the progress of our country”. Earlier this year, the Punjab & Haryana High Court refused to issue directions to protect a woman whose same-sex partner had approached the High Court in a habeas corpus petition contending that her partner had been held captive by her parents in Uttar Pradesh.
The Supreme Court’s landmark judgment in Navtej Singh Johar’s case, striking down Section 377 IPC, and thereby protecting same-sex couples held that sexual relations between consenting adults of the same-sex cannot be a criminal offence. However, the Punjab & Haryana High Court judge expressed shock at the petition and asked the petitioner to take the “immoral case back where it came from”. He stated that for him, “constitutionality and morality were the same thing”, and directed an inquiry into how the petitioner could represent the allegedly captive woman.
How the courts deal with LGBTQ+ petitioners
These are just two such instances where high courts have passed judgments or made observations on the purported immorality of non-traditional intimate relationships, be it same-sex or heterosexual. Most of these observations have come in cases where one partner filed a habeas corpus petition to protect or reunite with their partner. Habeas corpus petitions are filed in high courts to secure the release of a person from unlawful police or private detention, and are filed through the “next of friend” who are persons interested in the well-being of the detained person.
The case from Kerala
One such case travelled from the Kerala High Court to the Supreme Court where the HC had issued directions for psychological counselling of a woman who was in a same-sex relationship with the petitioner. In this case, the petitioner had alleged that her partner was being held captive against her wishes by her parents. The Supreme Court refused to interfere with the Kerala HC judgment as the person in alleged captivity made a statement that she desired to stay with her parents.
However, the Supreme Court took exception to the HC directing psychological counselling and on March 11, 2024, issued detailed guidelines to be followed by various HCs while dealing with such habeas corpus petitions filed in cases of intimate relationships.
It observed that it would be inappropriate to attempt to overcome the identity and sexual orientation of an individual by a process of “counselling”. It came down upon the trend of judges importing their personal perceptions of “immorality” in such cases. In doing so, the Court emphasised the concept of chosen families, especially in cases of LGBTQ+ persons where they face violence and humiliation at the hands of their natal families.
The Court directed that habeas corpus petitions in such cases must be granted priority by the HCs, without indulging in a roving inquiry into the nature of the relationship between the parties. It also directed that a conducive environment be created to deal with such cases, and it must be ensured that the detained person is not unduly influenced by the court, police or their natal families. It went a step further and directed that simply because the detained person may be a minor, this cannot be used as a ground to reject a habeas corpus petition.
The Supreme Court’s direction to courts
This judgment highlights the social stigma faced by people in “non-traditional” intimate relationships and emphasises that persons in need of protection must be granted it immediately, for the asking, with a view to maintaining their privacy and dignity. The Court by way of this judgment has prohibited the use of counselling in such cases as it may lead to coercion of the person to change their minds.
These guidelines must be followed as a mandatory minimum requirement by HCs, while they are free to expand upon the guidelines if it results in improvement of the same. This judgment has settled the basic criteria to be followed by HCs in such cases and would go a long way to protect same-sex, inter-faith and live-in couples. Judicial pronouncements however can only lay down the law for the courts to follow. There is a greater need for specific enabling legislation for the protection of such intimate relationships.
Courts and legislatures cannot force people to gain empathy, but such guidelines are a welcome step forward. Another major issue faced by such couples is the refusal of safe housing. State governments need to address this issue or judicial intervention may again be required — because safe housing is paramount for the protection of such relationships. The impact of the judgment remains to be seen and one hopes that it brings about a positive change in the way HCs deal with such cases.
Sinha, Advocate-on-Record of the Supreme Court of India, is the author of The Great Repression — the story of sedition in India
Despite the striking down of Section 377, high courts have a dispiriting track record when it comes to protecting the rights of queer couples. (Express Photo by Abhinav Saha) 
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