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| Photo Credit: B. Velankanni Raj

Our society is still conservative, and not every parent is like Justice Leila Seth (former Chief Justice of the Himachal Pradesh High Court who openly supported her gay son); however, that should not be a reason for the police to deny security to LGBTQIA+ couples facing threats, the Madras High Court has said.

A Division Bench of Justices G.R. Swaminathan and V. Lakshminarayanan made the observation while allowing a habeas corpus petition filed by a 25-year-old woman from Tirupattur against the illegal detention of her partner by the latter’s parents at their residence in Vellore district.

The judges allowed the detainee, also a major, to go with the petitioner after she confirmed that her parents had confined her at their residence against her will. Justice Swaminathan also gave ₹1,000 from his personal funds for the conveyance expenses of the same-sex couple.

Use of word ‘queer’

The Divsion Bench also expressed reservations over the usage of the expression ‘queer’ to describe persons whose gender identity or sexual orientation was outside societal norms and said, there was nothing strange or odd about such inclinations and therefore, the usage was not appropriate.

“We feel certain discomfort in employing the expression ‘queer.’ Any standard dictionary defines this word as meaning ‘strange or odd.’ To a homosexual individual, his/her/their sexual orientation must be perfectly natural and normal… Why then should they be called queer?” the judges wondered.

Censuring the police for having forced the detainee to go with her parents when a complaint was lodged with them, the court held that the government officials, the jurisdictional police in particular, would be duty-bound to respond to complaints of threats or harassment received from members of the LGBTQIA+ community.

“We also restrain the detenu’s natal family members from interfering with her personal liberty. We issue a writ of continuing mandamus to the jurisdictional police to afford adequate protection to the detenue as well as the petitioner as and when required,” the judges ordered.

Expressing their inability to convince the parents of the detainee to accept the relationship between their daughter and the habeas corpus petitioner, the Bench said, “But the law is very clear. All individuals, regardless of their sexual orientation and gender identity, possess the right to universal enjoyment of human rights.”

‘Same-sex couples can form family’

Authoring the verdict, Justice Swaminathan also wrote: “Same-sex couples can very well form a family. 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.”

They also referred to efforts taken by Justice N. Anand Venkatesh of the Madras High Court to improve the conditions of the LGBTQIA+ community and said, the judge had approved a deed of familial association that purported to recognise the civil union entered into between LGBTQIA+ partners.