Even Without Legal Marriage, LGBTQIA+ Couples Can Build Families

In a significant ruling, the Madras High Court in MA v. Superintendent of Police, Vellore and Ors has held that even though same-sex marriages are not legally recognised in India, members of the LGBTQIA+ community are entitled to form families and cannot be denied protection or dignity merely because of their sexual orientation.

Family Beyond Marriage: The Court’s Key Observation

A Division Bench of Justice GR Swaminathan and Justice V Lakshminarayanan clarified that while the Supreme Court in Supriyo @ Supriya Chakraborty v. Union of India (2023) declined to legalise same-sex marriages, it did not prevent the formation of families by LGBTQIA+ individuals.

“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 noted.

The Court also cited earlier observations by Justice N Anand Venkatesh, calling for legal recognition of civil unions for LGBTQAI+ couples.

Case Background: Love, Detention & Injustice

The ruling came in a habeas corpus petition filed by a woman whose lesbian partner (the detenue) was forcibly taken away and allegedly abused by her natal family.

The detenue’s mother alleged that her daughter was a drug addict and had been “led astray.” However, after interacting with the detenue, the Court rejected the claims and affirmed the detenue’s right to live with her partner.

“It would be unfair to accuse her of any kind of addiction… she made it clear that she wants to go with the petitioner,” the Court recorded.

“Not Every Parent is Like Justice Leila Seth”

In a moving reference, the Bench recalled Justice Leila Seth’s public acceptance of her gay son Vikram Seth, contrasting it with the present case:

“Our society is still conservative… Not every parent is like Justice Leila Seth. She could acknowledge and accept her son’s sexual orientation.”

The Court also invoked Article 21 of the Constitution, reaffirming that sexual orientation is part of personal liberty, dignity, and autonomy.

The Court Questions the Term “Queer”

The Bench also raised a linguistic concern, questioning the use of the term “queer”:

“We feel a certain discomfort in employing the expression ‘queer’… There is nothing strange or odd about such inclinations. Why then should they be called queer?”

Protection Ordered, Police Censured

The Court came down heavily on the police for failing to act, directing them to provide immediate protection and issuing a writ of continuing mandamus:

“We censure the rank inaction on the part of the police… We restrain the detenue’s natal family members from interfering with her personal liberty.”