"Law is a reflection of current social values or norms. Courts recognize changes and rule on the same. The oft-quoted maxim–love knows no bounds has expanded its bounds to include same-sex relationships", the Court said.
The Orissa High Court on Monday came to the aid of a transgender person whose live-in partner was forcibly taken away by her mother and uncle, who objected to the relationship.
A Bench of Justices SK Mishra and Savitri Ratho allowed the plea moved for her release after referring to various judgments by the Supreme Court.
These included the NALSA case on the rights of self-determination and the rights of transgender persons, the Anuj Garg v. Hotel Association of India, case which contained pertinent observations on personal autonomy, and the Navtej Singh Johar case, which decriminalised consensual homosexual relations.
The recognition of one's gender identity lies at the heart of the fundamental right to dignity, Justice Mishra was prompted to reiterate.
It was added that the personal autonomy of a person includes the "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 take part in..."
Justice Ratho echoed this opinion, noting that these cases "have settled the law regarding the right of a person for self determination of his/her sex/gender and consequently the right to have a live in relationship."
Justice Mishra proceeded to hold in his judgment,
"... taking into consideration the aforesaid authoritative pronouncements of the Hon’ble Supreme Court, there is hardly any scope to take a view other than holding that 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 as the petitioner."
In her concurring judgment, Justice Ratho observed,
As such, she also added that the society should support the couple's choice to live together.
"A reading of the Supreme Court judgements will indicate that individual rights have to be balanced with social expectations and norms. The freedom of choice is therefore available to the two individuals in this case who have decided to have a relationship and live together and society should support their decision", reads her judgment.
With these observations, the Court allowed the criminal writ petition before it and issued directions for reuniting the couple.
The State was directed to give them protection. The Bench also added that the woman would have all the rights of a woman enshrined under the Domestic Violence Act.
Further, the Court has asked the petitioner to allow his partner's family to visit and communicate with her.
Read the Judgment:
