CHENNAI | 4TH JUNE 2025
In a significant judgment reinforcing LGBTQIA+ rights in India, the Madras High Court recently observed that even though same-sex marriages are not legally recognized, individuals from the LGBTQIA+ community are fully entitled to form families.A Division Bench of Justices GR Swaminathan and V Lakshminarayanan emphasized that family is not limited to marriage alone. The observations came while ruling on a habeas corpus plea filed by a lesbian woman seeking the release of her partner allegedly detained by her natal family.
COURT AFFIRMS RIGHT TO CHOSEN FAMILIES
Referring to the Supreme Court’s ruling in Supriyo @ Supriya Chakraborty Vs Union of India, where it declined to recognize same-sex marriages as a fundamental right, the Madras High Court clarified:
“While Supriyo @ Supriya Chakraborty Vs Union of India (2023 INSC 920) may not have legalised marriage between same sex couples, they 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 Bench also acknowledged previous efforts by Justice N Anand Venkatesh, who had called for legal recognition of civil unions for LGBTQIA+ couples.
COURT ORDERS RELEASE OF LESBIAN PARTNER FROM DETENTION
The case involved a lesbian couple forcibly separated after one partner (the detenue) was allegedly detained by her family against her will. The petitioner sought the Court’s intervention after local police refused to assist and instead pressured the detenue to return home, where she was reportedly subjected to violence and “rituals” aimed at “correcting” her sexual orientation.
The detenue’s mother alleged her daughter was a drug addict misled by the petitioner. However, after interacting directly with the detenue, the Court stated:
“It would be unfair to accuse her (detenue) of any kind of addiction … She made it clear that she wants to go with the petitioner. She confirmed the allegation that she is being detained against her will by her natal family. It appeared that she was forcibly taken to her home and beaten.”
COURT REMEMBERS LEILA SETH’S ACCEPTANCE OF HER SON’S IDENTITY
In a poignant comparison, the Bench reflected on the late Justice Leila Seth, mother of author Vikram Seth, who publicly supported her son’s sexual identity:
“We can understand the hesitation on her part. Our society is still conservative … Not every parent is like Justice Leila Seth. She could acknowledge and accept her son’s sexual orientation … Unfortunately, Leila Seth J did not live to see the decriminalisation of homosexuality through the historic judgment in Navtej Singh Johar v. Union of India ((2018) 1 SCC 791). The mother of the detenue is no Leila Seth.”
SEXUAL ORIENTATION IS PROTECTED UNDER ARTICLE 21
Reaffirming the constitutional protections afforded to individuals, the Court noted:
“Sexual orientation 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 of India.”
Court Critiques the Term “Queer”
Interestingly, the Bench also expressed discomfort with the use of the term “queer” in reference to LGBTQIA+ persons:
“We feel a certain discomfort in employing the expression ‘queer.’ 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?”
HIGH COURT ISSUES WRIT OF CONTINUING MANDAMUS FOR PROTECTION
Ruling in favor of the petitioner, the Court directed the release of the detenue and barred her family from interfering in her personal liberty. The Court also issued strict directions to the police:
“We censure the rank inaction on the part of the Police and the insensitivity shown by them … 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 … We restrain the detenue’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.”
LEGAL REPRESENTATION
Petitioner was represented by Advocate MA Mumtaj Surya
State was represented by Additional Public Prosecutor E Raj Thilak
