THE RIGHT TO LIVE IN AND LGBTQIA+ COMMUNITY
An individual's experience of his sexual orientation is his deeply felt innate desire which is not a matter of control of that individual. An individual may either be heterosexual or homosexual depending upon the gender of the other person towards whom he feel attracted to. If an individual's sexual, emotional and romantic inclination is towards a person of same sex, he is termed as homosexual whereas in case he feels the inclination towards person of opposite gender, he is termed as heterosexual. Individuals who feel attracted towards people of both genders are termed as bisexual. In the case of Navtej Singh Johar and others vs. Union of India and others [AIR 2018 SC 4321], the Hon'ble Supreme Court of India unanimously ruled that the sexual orientation of an individual cannot be a ground for prosecuting him and thereby decriminalised consensual penile non vaginal sexual intercourse between adults in private. However, the basic civil rights such as right to marriage, adoption or succession was not provided to the members of LGBTQIA+ community.
However recently, a more liberal approach has been adopted by the various Hon'ble High Courts in India by providing the right of live in to same sex couples. It has been held by the Hon'ble Uttarakhand High Court in the case of Madhu Bala vs. State of Uttarakhand [Habeas Corpus Petition no. 8 of 2020] that once an individual attains the age of majority, it is his decision as to who he/she wants to live with. The wishes of the parents cannot be taken into consideration. Similarly, the Hon’ble Orissa High Court in the case of Chinmayee Jena @ Sonu Krishna Jena vs. State of Odisha & others [Writ Petition (Criminal) no. 57 of 2020] that the right of an individual to choose his or her partner cannot be stifled in the name of the honour and reputation of the family. In order to substantiate their point, the provisions of Protection of Women from Domestic Violence Act, 2005 were referred to by both the High Courts to state the fact that live in relationships are recognised even by the Legislature in India.
Therefore, as per the decisions of the above High Courts, the members of the LGBT community has a right to live in together and their right cannot be abridged in the name of honour of the family. However, an question which has arisen from the above decisions of the Hon'ble High Court is whether the provisions of Protection of Women from Domestic Violence Act, 2005 shall applicable to same sex live in relationships? The answer to this question has not been provided.
Written By: Mr. Manik Mahajan,LLB, Final Year Law Student at Punjab University